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TMI Blog2021 (2) TMI 760X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of the Sanction Scheme of Amalgamation. Under Section 2(1B) of the Income Tax Act, 1961, all the properties and liabilities of the amalgamating companies immediately before the amalgamation become the liabilities of the amalgamated company by virtue of the amalgamation. Therefore, the petitioner cannot disown its liability as a successor. Further, it is a paradox for the petitioner to expose the course of dead and defunct company in this Writ Petition if according to it the said company does not exist. As per the Sanctioned Scheme of amalgamation, all tax and liability of the transferor company (Mando India Limited), from the appointed dates, shall, for all purposes, be treated as the tax, cess, duty, liabilities or refunds, claims and etc. Further, the Sanction Scheme of amalgamation mandates the petitioner to file necessary revision in the income tax returns also pursuant to provisions of the Scheme. Petitioner had taken over all the assets and liabilities of the said Mando India Limited. The petitioner should have filed in its tax return a composite tax return including the return for the Assessment Year 2013-2014 of the said Mando India Limited. Instead, the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said judgement, wherein, it has been held that where an assessing officer was informed about the amalgamating company having ceased to exist as a result of the approved scheme of amalgamation and where a notice was issued only in its name, the basis on which the notice was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceased to exist upon the approved Scheme of Amalgamation. 4. The Court therefore held that participation in the proceeding by the appellant therein cannot operate as an estoppel against law. The Court concluded that the revenue s appeal against the decision of the Delhi High Court in Spice Entertainment Ltd Vs. Commissioner of Service Tax , in ITA 475 of 2011 and ITA No. 476 of 2011, Judgement dated 03.08.2011, holds the field in as much as the Special Leave Petition filed by the Income Tax department in Civil Appeal No.285 of 2014 along with batch of other cases were dismissed by a common order by the Hon ble Supreme Court in its order dated 02.11.2017. 5. The learned counsel for the petitioner further submits that after the order amalgamating the noticee company Mando India Ltd with the petitioner, the petitioner h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner of Income-tax, Media Circle-11, Chennai Vs. Vijay Television (P.) Ltd. , (2018) TaxCorp (DT) 73784 (HC-MADRAS). xi. eMudhra Ltd. Vs. Assistant Commissioner of Income Tax , [2020] 117 taxmann.com 550 (Karnataka). 9. Defending the impugned order of the respondent, the learned counsel for the respondent submits that the petitioner deliberately mis-led the Income Tax Department by filing a return on 29.11.2013 in the name of Mando India Ltd which had already merged with the petitioner with effect from 01.04.2013 and since the system picks the name given in the returns filed electronically, the impugned order came to be passed in the name of the merged company namely Mando India Ltd. 10. The learned counsel for the respondent further submits that certain income tax refund in the name of the merged company Mando India Ltd was collected by the petitioner using the PAN Number of the said company despite the said company having merged with the petitioner with effect from 01.03.2013. It is therefore submitted that the petitioner cannot take advantage of its own mistake and blame the respondent and take contradictory stand one for refund and for quashing the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atch of appeals filed by the Income Tax Department in Civil Appeal No 285 of 2014 and few other cases vide order dated 2.11.2017 has to be applied cautiously. 16. In Spice Entertainment Ltd Vs. Commissioner of Service Tax , in ITA 475 of 2011 and ITA No. 476 of 2011, Judgement dated 03.08.2011, the amalgamating company namely Spice Corp. Ltd. had filed its income tax returns on 13.10.2002 prior to merger. The said company stood merged with Spice Enfotainment Ltd by an order dated 11.02.2004. Meanwhile, before the aforesaid order of amalgamation, the returns filed by the transferor company Spice Corp. Ltd. on 30.10.2002 was taken up for scrutiny and a notice dated 18.10.2003 was issued in the name of Spice Corp. Ltd. under Section 143(2) of the Income Tax Act, 1961. The fact that the said company had merged with Spice Enfotainment Ltd. was brought to the notice of the Income Tax Department by the latter vide its letter dated 02.04.2004. It is under those circumstances, the Delhi High Court was of the view that after notice under Section 143(2) was sent, the transferee company namely Spice Enfotainment Ltd. had brought the same to the knowledge of the Assessing Officer, yet the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... succeeded therein by any other person (hereinafter in this section referred to as the successor) who continues to carry on that business or profession,- ( a ) the predecessor shall be assessed in respect of the income of the previous year in which the succession took place up to the date of succession; ( b ) the successor shall be assessed in respect of the income of the previous year after the date of succession. (2) Notwithstanding anything contained in sub-section (1), when the predecessor cannot be found, the assessment of the income of the previous year in which the succession took place up to the date of succession and of the previous year preceding that year shall be made on the successor in like manner and to the same extent as it would have been made on the predecessor, and all the provisions of this Act shall, so far as may be, apply accordingly. (3) When any sum payable under this section in respect of the income of such business or profession for the previous year in which the succession took place up to the date of succession or for the previous year preceding that year, assessed on the predecessor, cannot be recovered from him, the [Assessing] Officer sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Transferor Company from the Appointed Date onwards including all or any refunds and claims, including refunds or claims pending with any Revenue Authorities and including the right to claim credit for minimum alternate tax and carry forward of accumulated losses, shall, for all purposes, be treated as the tax, cess, duty, liabilities or refunds, claims, accumulated losses and credits pertaining to indirect taxes such as Cenvat credit, VAT credit etc of the Transferee Company. Accordingly, upon the Scheme becoming effective, the Transferee Company is expressly permitted to revise, if it becomes necessary, its Income tax returns, Sales tax returns, Excise Cenvat returns, service tax returns, other tax returns, and to claim refunds / credits, pursuant to the provisions of this Scheme. The Transferee Company is also expressly permitted to revise , if it becomes necessary, its income tax returns and related TDS Certificates, including TDS Certificates relating to transactions between or amongst the Transferor Company and the Transferee Company, and to claim refunds, advance tax and withholding tax credits, benefit of credit for minimum alternate tax and carry forward of accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espectively and the same may be valid, effective and enforceable on the same terms and conditions to the extent permissible under law and it shall not be necessary to obtain the consent of any third party or other person who is a party to any contract or arrangement. 26. Thus, it is abundantly clear that the petitioner had taken over all the assets and liabilities of the said Mando India Limited. The petitioner should have filed in its tax return a composite tax return including the return for the Assessment Year 2013-2014 of the said Mando India Limited. Instead, the petitioner deliberately filed return in the name of the transferor company (Mando India Company) on 29.11.2013 which had already ceased to exist with effect from 01.03.2013. 27. Further, as per Section 139A(5) of the Income Tax Act, every person shall quote the Permanent Account Number (PAN) in all his returns or in any correspondence with the income-tax department. Thus, the petitioner deliberately mislead the Income Tax Department by assuming that it can file returns with the Permanent Account Number (PAN) of a defunct transferor company with the view to take undue advantage of certain lines of decision to for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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