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TMI Blog2015 (1) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... d business losses of earlier years under section 72 should be set off. - Decided in favour of revenue. X X X X Extracts X X X X X X X X Extracts X X X X ..... terfere with the impugned order of the Tribunal. 5.1. Learned advocate for the respondent has drawn our attention to Section 79 of the Income Tax Act and submitted that in view of the aforesaid section and in view of the observations made by the CIT(A) in its order, no interference is required to be called for by this Court in the impugned order of the Tribunal. He, therefore, urged that this Court may answer the question No.1 in favour of the assesseee. 5.2. So far as the question No.2 is concerned, learned advocate for the respondent has submitted that the same is already concluded by the Apex Court in favour of the revenue and against the assessee in the case of Commissioner of Income Tax v. Shirke Construction Equipment Ltd. reported in [2007] 291 ITR 380 (SC). 6. We have heard learned advocates for the parties and perused the material on record. Before dealing with the contentions, it would be relevant to reproduce Section 79 of the Income Tax Act, which reads as under:- "Section 79 Notwithstanding anything contained in this Chapter, where a change in shareholding has taken place in a previous year in the case of a company carrying not being a company in which the publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me to mention that I do not find the relevance of this decision in this case at all. The law has long been changed after this decision has been rendered. In this case, the main issue to be decided was whether in that instant case the change is shareholding was done with a view to avoid tax (originally subsection (b) of section 79. With the withdrawal of clause (b) with effect from 1.4.89 the ratio of this decision is not useful to any of the cases for all A.Y. Subsequent to A.Y. 89-90. The case of the assessee in that case was that the assessee fell within the exception carved out by provisions of clause (b) of section 79. However, I do not seek to apply the ratio strictly as the assessee in the above referred case had not argued the issue which is sought to be contested by the appellant in this case. The appellant has also relied on the decision of the Bombay High Court in the case of Brooke Bond India Ltd. Vs. Dinkar Landge 56 Com Cases 1. In this it has been held that a period does not case get the rights of a member during the pendency of the petition of amalgamation, even though the proposed scheme of amalgamation is within the retrospective effect. The appellant relied on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was the beneficial interest in the assets of the appellant company and not in the shares of the appellant company. For holding beneficial interest into any asset it is necessary that the asset must be in existence, if the asset is not existing the question of holding beneficial interest in the said asset do not arise. 3.5. On perusal of the Scheme of Amalgamation as approved by the Bombay High Court some interesting reasons come to the light. In paras 2,3,4,6 and 7 the reference is made to the appointed date, which is 1st April, 1989. It has been mentioned in these paras that on the approval of the said scheme the assets, rights, obligations, profits and losses of the amalgamating company will belong to or vest in the appellant company with effect from the appointed date. However, reading para 9 (relied upon also by the A.O.) the reference is made to the Scheme becoming effective and not with effect from the date, in which , the procedural formalities as prescribed under the Companies Act, 1956 is completed. These formalities are mentioned in para 15 of the Scheme of Amalgamation which includes the approval of the High Court. Sub Section (3) of Section 391 of the Companies Act, 195 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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