1996 (11) TMI 6 - SC - Income Tax

Every scheme of amalgamation has to necessarily provide a date with effect from which the amalgamation/transfer shall take place. - But where the court does not prescribe any specific date but merely sanctions the scheme presented to it - It must be remembered that before applying to the court under section 391(1), a scheme has to be framed and such scheme has to contain a date of amalgamation/transfer. The proceedings before the court may take some time; indeed, they are bound to take some time because several steps provided by sections 391 to 394A and the relevant rules have to be followed and complied with. the notices issued by the Income-tax Officer (impugned in the writ petition) were not warranted in law. The business carried on by the transferor company (subsidiary company) should be deemed to have been carried on for and on behalf of the transferee company. This is the necessary and the logical consequence of the court sanctioning the scheme of amalgamation as presented to it. The order of the court sanctioning the scheme, the filing of the certified copies of the orders of the court before the Registrar of Companies, the allotment of shares, etc., may have all taken place subsequent to the date of amalgamation/transfer, yet the date of amalgamation in the circumstances of this case would be January 1, 1982.

Issues Involved:
1. Date of Effectiveness of Amalgamation
2. Authority of Income-tax Officer to Demand Returns Post-Amalgamation
3. Allegation of Tax Evasion
4. Maintainability of Writ Petition

Issue-Wise Detailed Analysis:

1. Date of Effectiveness of Amalgamation
The primary issue was whether the amalgamation of the subsidiary company with the holding company was effective from January 1, 1982, as specified in the scheme of amalgamation, or from the dates when the High Courts of Madras and Calcutta sanctioned the scheme (January 20, 1984, and February 24, 1984, respectively).

The High Court held that the date of amalgamation specified in the scheme (January 1, 1982) was "totally artificial and arbitrary" because the amalgamation was not even contemplated until December 1982. The court opined that the amalgamation becomes effective only when sanctioned by the court, and in the absence of a specific date mentioned in the court's order, the date of the court's sanction should be taken as the effective date.

However, the Supreme Court disagreed, stating that every scheme of amalgamation must provide a date from which the amalgamation/transfer shall take place. Since the scheme specified January 1, 1982, and the courts did not modify this date, the amalgamation should be deemed effective from January 1, 1982. The business carried on by the subsidiary company post this date should be deemed to have been carried on for and on behalf of the holding company.

2. Authority of Income-tax Officer to Demand Returns Post-Amalgamation
The Income-tax Officer issued notices under section 139(2) and section 142(1) of the Income-tax Act, calling upon the subsidiary company to file returns for the assessment years 1984-85 and 1985-86. The subsidiary company argued that post-amalgamation, it had no independent existence and thus could not file returns.

The Supreme Court held that the notices issued by the Income-tax Officer were not warranted in law because the business carried on by the subsidiary company should be deemed to have been carried on for and on behalf of the holding company from January 1, 1982. Therefore, the subsidiary company had no independent income to report post this date.

3. Allegation of Tax Evasion
The Income-tax Officer contended that the amalgamation was a device to evade taxes legitimately due from the subsidiary company, as the holding company was incurring losses while the subsidiary company was making substantial profits.

The High Court did not express an opinion on this issue due to its findings on the date of amalgamation. The Supreme Court also did not delve into this matter, stating that if the income-tax authorities believe they have grounds to raise this question, they are entitled to do so in a separate proceeding according to law.

4. Maintainability of Writ Petition
The Income-tax Officer argued that the writ petition was not maintainable as the Income-tax Act provides adequate remedies to address the issues raised.

The High Court did not address this argument due to its findings on the date of amalgamation. The Supreme Court, by allowing the appeals, implied that the writ petitions were maintainable and that the High Court should have considered the merits of the contentions raised by the appellant.

Conclusion
The Supreme Court allowed the appeals, setting aside the High Court's judgment, and held that the amalgamation was effective from January 1, 1982. The writ petitions filed by the appellant in the High Court were deemed to have been allowed. The Court clarified that it had not expressed any opinion on the allegation of tax evasion and left it open for the income-tax authorities to address this issue in separate proceedings if they deemed it necessary.

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