9911796707
TMI Blog2012 (11) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... Held that:- Assessee cannot be expected to do an impossible thing i.e. filing of return of amalgamated entity before it is coming into legal existence and, therefore, such return should relate back to the original returns filed by these companies individually. It is not in dispute that original returns have been filed within the time specified u/s 139(1) - there is no default of provisions of section 80 as held by the Assessing Officer - Once the scheme of amalgamation had been sanctioned with effect from a particular date, it is binding on every one including the statutory authorities and the only course open to the Revenue would be to act as per the scheme sanctioned, the tax authorities are bound to take note of the state of affairs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eunder the relevant portion from the aforesaid order of the Tribunal dated 18th November, 2009 :- 3. In this appeal, in ground no. 1, the Revenue is aggrieved by the decision of Ld. CIT(A) directing the A.O. to allow the carry forward of the loss of Rs. 2,83,85,937/- disallowed by the Assessing Officer while framing the assessment. 4. The facts, in brief, are that the returned income was shown Nil by the assessee company after setting off brought forward losses to the tune of Rs. 2,83,85,937/-. The A.O. required the assessee to explain regarding the eligibility of such set off. The assessee submitted that the quantum of carry forward loss and unabsorbed depreciation was subject to pending assessment/appeals for earlier years. It was al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to M/s Shri Ram Agro Tech Industries Limited. The A.O. held that such business loss was not eligible for carry forward and set off in subsequent years as the revised return i.e. return for merged entity was filed beyond the statutory limit, hence, violation of provisions of section 80 of the Act. He further held that business activities and production activities of M/s Shri Ram Agro Tech Industries Limited had been closed before amalgamation and the amalgamated entity (the assessee ) basically carried forward the losses of erstwhile Shri Ram Agro Tech Industries Limited merely for taking advantage of the same in the assessment year after its disposing of the fixed assets of Company and hence in A.Y. 1999-2000 it had no further existence and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et off of such losses upto the assessment year 1996-97 only from assessment year 1997-98 one assessment order was passed by the Assessing Officer which was in respect of the company Delhi based company subsequently merged. Accordingly, contention of the appellant for set off of brought forward losses, as per assessments for the company based at Bhopal, namely, Shriram Agro Tech Industries Limited is correct.The assessments for the amalgamating and amalgamated companies were made separately up to the assessment year 1996-97. It would be relevant to mention at this juncture, the CBDT Circular No. 779 on the subject Finance Act, 1999, explanatory Notes on the provisions relating to direct taxes quoted hereunder :- (xxi) Section 72 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of same business to be in existence to claim set off of such carried forward losses. 8. We have considered the submissions made by both the sides, material on record and the orders of the authorities below. 9. It is noted that the return of both amalgamating and amalgamated company have been filed within the time period specified u/s 139(1). It is also noted that consolidated return of the amalgamated entity has been filed for the assessment year 1997-98, after amalgamation being approved by the concerned Hon ble High Courts. Thus, in our opinion, in these circumstances, the assessee cannot be expected to do an impossible thing i.e. filing of return of amalgamated entity before it is coming into legal existence and, therefore, such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under :- Once the scheme of amalgamation had been sanctioned with effect from a particular date, it is binding on every one including the statutory authorities and the only course open to the Revenue would be to act as per the scheme sanctioned, the tax authorities are bound to take note of the state of affairs of the applicant as on the effective date i.e. Ist Jan 2004 and a revised return filed reflecting the same cannot be ignored on the strength of s. 139(5). In view of the above decision from Hon ble Madras High Court and the decision of the Tribunal that too in the case of the assessee itself, we find no infirmity in the impugned order. It is affirmed. Finally, both these appeals of the Revenue are dismissed. Order pronoun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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