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TMI Blog2021 (9) TMI 280X X X X Extracts X X X X X X X X Extracts X X X X ..... essee‟) under Sections 115-QA and 115-QB of the Income Tax Act, 1961 ('Act‟) in the impugned assessment order dated 31st December, 2016 passed by the Assessing Officer ('AO‟) (Respondent No. 1), the Assessee has approached this Court with the present petition under Article 226 of the Constitution of India. Along with the petition, an application being CM No.3141/2017 was filed seeking interim directions to restrain the Respondents from enforcing the demand in terms of the impugned order. 2. By the impugned assessment order, inter alia, a demand was sought to be created under Section 115-QA of the Act in relation to the Assessee buying back 10 lakhs equity shares out of opening share capital of 25,68,700 shares from M/s. Genpact India Investment, Mauritius ('GII‟) in two phases in May and October, 2013. The case of the Revenue was that the scheme adopted to buyback such shares was a colourable device to evade 'buyback distribution tax liability‟ under the Act. The case of the Assessee on the other hand was that the buyback of shares was pursuant to a scheme of arrangement under Section 391 of the Companies Act, 1956 ('CA‟) approved by the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al and as to the appeal being barred by limitation. The Court also takes on record the statement of the Revenue that it will not enforce the demand in terms of the impugned assessment order till the disposal of the above appeal. All of the above is subject to the Assessee filing the appeal before the CIT (A) within ten days from today. (vi) It is made clear that this Court has not expressed any view whatsoever on the contentions of either party on the merits of the case. 28. The writ petition and pending application are disposed of with above directions. No costs" 5. With the above factual background, the Revenue has raised the following grounds of appeal: 1. Whether on the facts and circumstances of the case & in law, the Ld. CIT(A) erred in treating income of Rs. 19,21,88,611/- from interest on fixed deposits as eligible for deduction u/s 10A & 10AA of the I.T. Act, 1961. 2. Whether on the facts and circumstances of the case & in law, the Ld. C1T(A) erred in treating income of Rs. 6,97,54,470/- from interest on inter corporate deposits as eligible for deduction u/s 1OA & 1OA A of the I.T. Act 1961. 3. Whether on the facts and circumstances of the case & in law, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... migration on-the-job training expenses Rs. 195,93,29,278/- 3. That on facts and in law CIT(A) erred in not appreciating that recovery of expenses in respect migration/ on-the-job training services and telecommunication expenses were not included in the figure of "export turnover" considered by the Appellant while computing deduction u/s 10AA of the :t. 4. That on facts and in law the CIT(A) erred in upholding the order of AO partly and not owing complete relief as claimed. 5. That on facts and in law the order passed by the AO is void ab initio and bad in law. That the Appellant prays for leave to add, alter, amend and/or vary the ground(s) of appeal at or fore the time of hearing 7. As mentioned at the very beginning, the impugned assessment order dealt with other issues [other than the demand u/s 115QA of the Act]. The matter travelled upto the Tribunal and the Tribunal in ITA No. 583/DEL/2020 order dated 23.07.2020 has quashed the assessment order. The relevant findings of the Tribunal read as under: "7. We have heard both the parties and perused the records available before us. From the perusal of the records, it can be seen that erstwhile entity Genpact India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fused into one by merger or by taking over by another. Reconstruction or 'amalgamation' has no precise legal meaning. The amalgamation is a blending of two or more 30 [2019] 260 Taxman 412 (Del.) 31 (2019) 261 Taxman 137 (Guj) existing undertakings into one undertaking, the shareholders of each blending company become substantially the shareholders in the company which is to carry on the blended undertakings. There may be amalgamation either by the transfer of two or more undertakings to a new company, or by the transfer of one or more undertakings to an existing company. Strictly 'amalgamation' does not cover the mere acquisition by a company of the share capital of other company which remains in existence and continues its undertaking but the context in which the term is used may show that it is intended to include such an acquisition. See: Halsbury's Laws of England (4th edition volume 7 para 1539). Two companies may join to form a new company, but there may be absorption or blending of one by the other, both amount to amalgamation. When two companies are merged and are so joined, as to form a third company or one is absorbed into one or blended with another, the amalgamatin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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