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TMI Blog2014 (1) TMI 657X X X X Extracts X X X X X X X X Extracts X X X X ..... have any effect from the year in which it was omitted - Even if there was any change in the ownership through acquisition of shares in earlier year 2003-04, exemption under section 10A, cannot be denied on this ground in the assessment year 2004-05. There was a transfer of 1.5% (3 lacs shares) of the assessee company in favour of Altana Pharma AG by wholly owned subsidiary - The original shareholders maintained 51% shareholding pattern as on 31.3.2003 - Decided in favour of assessee. - I.T.A. No.2775/M/2013 - - - Dated:- 10-1-2014 - Shri Vijay Pal Rao, JM And Shri D. Karunakara Rao, AM,JJ. For the Petitioner : Shri B. V. Jhaveri For the Respondent : Shri A. C. Tejpal ORDER Per : Vijay Pal Rao, JM This appeal by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4/2013. The Ld. A.R has pointed out that the assessee is a Joint Venture Company between BYK Gulden Lamberg GmbH (the name was subsequently changed to Altana Pharma AG w.e.f 1.7.2002) and Cadila Healthcare Ltd. The foreign partner of the Joint Venture as well as Cadila Healthcare Ltd. were holding 49.98% stake in the company and the rest share holding of .04% was held by the two individuals namely Mr. Pankaj R. Patel and Mr. Heinz W. Bull. In the year 2002 the non-resident partner/shareholder in the assessee company transferred its entire share holding of 49.98% to its wholly owned subsidiary BYK Vermogensverwaltung GmbH in the month of November 2002. However, in the month of February 2003 the non-resident shareholder namely Altana Pharma A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by any means during any previous year the deduction u/s 10B(1) shall not be allowed to the assessee for the assessment year relevant to such previous year and the subsequent years. The assessee claimed that to wringle out from the provisions of Section 10B(9) and to maintain the share holding of 51% by the original promoters the nonresident partner of the assessee, Joint Venture took back 1.5% of the share holding form its wholly owned subsidiary in the month of February 2003. The Commissioner has doubted the transaction of the transfer of 1.5% by the subsidiary to the Altana Pharma AG on the ground that the assessee has not produced the relevant record to prove the same. The conclusioning finding of the Commissioner is given in para 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of transfer of 1.5% of the share back from subsidiary to the non-resident partner of the assessee company however, no specific finding has been given that the said transaction of transfer of 3,00,000 shares by the subsidiary to the Altana Pharma AG is bogus. We further noted that an identical issue has been considered and decided by the Tribunal for the assessment year 2006-07 in para 6 as under: 6. Before proceeding further let us examine the share pattern at the end of each financial year from the inception i.e. 31.03.2000 to 31.03.2003:- The facts on record show that since inception, the non-resident share holder in the assessee company was Byk Gulden Lomberg Chemische Fabric GmbH w.e.f. 01.07.2002. The said company changed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for verification alongwith its letter dated 12.05.2010. 1. Details of flow of fund for transfer of shares between the Byk Vermogensver waltung GMBH Altana Pharma 2. Original Minutes of Board Meetings of the assessee company reflecting the Board Resolution dated 13.03.2003. 3. Copies of RBI Approval for issue of shares to Altana Pharma 4. Original acknowledged copy of forwarding letter dated 20.03.2003, in respect of 2nd interim dividend paid during F.Y. 2002-03. 5. Copy of RCD 2 in respect of the 1st interim dividend paid by the assessee company during F.Y. 2002-03. 6. Copy of the Annual Return as per the Companies Act, 1956, filled by the assessee company with the Registrar of Companies (ROC), during F.Y. 2003-04. 7. Copy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted as 1969 (2) SCC 412 and again in (ii) Kolhhapur Cane Sugar Works Ltd. vs. Union of India, reported as [2002] 2 SCC 536, the Tribunal at para 16 of its order held as under: 16. From the above proposition of law, it is clear that if a provision in a statute is unconditionally omitted without any saving clause in favour of the pending proceedings, all actions must stop where such an omission is found. Thus, once the provisions of subsection 9 have been omitted, then it can be safely inferred that such an omission will be applicable wherever omitted section comes into play. The Bangalore Bench of the Tribunal in M/s. G.E.Thermo Matrix India P. Ltd. (supra), after relying on the aforesaid judgment of Constitutional Bench of the Hon ble Su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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