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TMI Blog2021 (4) TMI 1101X X X X Extracts X X X X X X X X Extracts X X X X ..... f amalgamation which was to become effective from 1-04-2016. Pursuant to the said amalgamation the claim of the petitioner/ company is that the Company was not in existence in law of the scheme of amalgamation to be effect with effect from 01.04.2016. 3. The scheme of amalgamation had to be placed before the National Company Law Tribunal for approval. The National Company Law Tribunal ('the Tribunal' for short) by its order dated 20th March 2017 approved the scheme of amalgamation dated 1-04-2016. It is the period between 1-04-2016 and 20.03.2017 that is the issue in the present writ petitions. 4. On 16-06-2016 and 3-01-2017 notices were issued by the revenue to the petitioner seeking an explanation as to why advance tax should not be chargeable at the hands of the petitioner under the Act for the assessment year 2017-18. The notices were sent invoking Section 208 of the Act. The petitioner replied to the said notices dated 16-06-2016 and 3-01-2017 on two different dates on 21-06-2016 and 9-01-2017 explaining the reason as to why no advance tax was payable by the petitioner/company for the assessment year 2017-18. The claim of the petitioner was that under the scheme of amalgamat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct to pay advance tax between 1-04-2016 and 20-03-2017 for the assessment year 2017-18. 10. It is not in dispute that the petitioner/company and two other companies were amalgamated under the scheme of amalgamation before High Court of Delhi. Government of India in the Ministry of Corporate Affairs issued a notification on 17.12.2016 that the scheme of amalgamation of the petitioner was transferred to the National Company Law Tribunal, New Delhi and at Bangalore. Therefore, the scheme of amalgamation was transferred to the Tribunal. The Tribunal on receipt of the scheme from the hands of the Government of India on 17.12.2016 approved the same on 20-03-2017. The stamp of approval of the scheme of amalgamation, which in terms of law happened on 20-03-2017, albeit with retrospective effect i.e., from the date on which they had entered into such a scheme i.e., 1-04-2016. To consider whether the petitioner was liable to pay advance tax between the aforesaid dates, the provision concerning payment of advance will have to be noticed. The relevant provisions that concerns here is Sections 207, 208, 209 and 211 of the Act, which read as follows: "207. Liability for payment of advance tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be calculated at the rates in force in the financial year; (d) the income tax calculated under clause (a) or clause (b) or clause (c) shall, in each case, be reduced by the amount of income tax which would be deductible or collectible at source during the said financial year under any provision of this Act from any income (as computed before allowing any deductions admissible under this Act) which has been taken into account in computing the current income or, as the case may be, the total income aforesaid; and the amount of income tax as so reduced shall be the advance tax payable: [Provided that for computing liability for advance tax, income tax calculated under clause (a) or clause (b) or clause (c) shall not, in each case, be reduced by the aforesaid amount of income tax which would be deductible or collectible at source during the said financial year under any provision of this Act from any income, if the person responsible for deducting tax has paid or credited such income without deduction of tax or it has been received or debited by the person responsible for collecting tax without collection of such tax.] (2) Where the Finance Act of the relevant year provided t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income of the previous year in respect of which a return of income is furnished by the Hindu undivided family under Section 139 or in response to a notice under sub-section (1) of Section 142 forms the basis of computation of advance tax, if the total income of any member of the family for the assessment year relevant to such previous year exceeds the maximum amount not chargeable to income tax in his case. 211. Instalments of advance tax and due dates.- [(1) Advance tax on the current income calculated in the manner laid down in Section 209 shall be payable by- (a) all the assessees, other than the assessee referred to in clause (b), who are liable to pay the same, in four instalments during each financial year and the due date of each instalment and the amount of such instalment shall be as specified in the Table below: TABLE Due date of instalment Amount payable On or before the 15th June Not less than fifteen per cent of such advance tax. On or before the 15th September Not less than forty-five per cent of such advance tax, as reduced by the amount, if any, paid in the earlier instalment. On or before the 15th December Not less than seventy-five per cent o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee in the case of MARSHALL SONS AND CO. (INDIA) LIMITED v. INCOME TAX OFFICER reported in 1997 Income Tax Reports 809 the Apex Court was considering the scheme of amalgamation held to be reasonable to say that the scheme of amalgamation took effect on and from the date of sanctioning the scheme The order of the Tribunal in the case on hand sanctioning the same was on 20-03-2017. Therefore, the scheme would take effect from that date and advance tax to be paid from 1-04- 2016 to 20-03-2017 i.e., three installments cannot be contended that the petitioner was not liable to pay any advance tax. 13. In so far as the judgment in the case of PRINCIPAL COMMISSIONER OF INCOME TAX, NEW DELHI v. MARUTI SUZUKI INDIA LIMITED reported in (2019) 107 Taxmann.com 375 of the Apex Court, the said judgment is also not applicable to the facts of the case at hand, as the scheme of amalgamation came into effect by an order being passed by the Tribunal on 20- 03-2017. The Apex Court in the aforesaid judgment has held that two companies may join to form a new company. When two company are merged and so joined as to form a third company or one is absorbed into one or blended with another, the amal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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