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TMI Blog2022 (10) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... EL). The appellant and JK Environ-tech LTD (JKETL) has submitted a scheme for merger to the Hon'ble High Court, Gujarat. The said Scheme provided for the appointed date of merger as 01.04.2013. Learned Chartered Accountant pointed out that the entire demand has been raised on the ground that the Special Purpose Vehicle (SPV) namely JK Environ-tech LTD (JKETL) who received the GTA services and who paid for the GTA services was not a service provider or a manufacturer of goods and therefore could not have availed the Cenvat Credit. Learned Chartered Accountant pointed out that in terms of the decision of the Tribunal in the case of ITC HOTELS LTD reported in -2011 16 taxmann.com 54 (New Delhi-CESTAT), the two entities namely the appellant and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the law on the issue stands settled by the Hon'ble Supreme Court decision in the case of Marshall Sons & Co. (India) Ltd. v. Income Tax Officer referred supra. It stands held in para 14 of the said judgment as under :- "Every scheme of amalgamation has to necessarily provide a date with effect from which the amalgamation/transfer shall take place. The scheme concerned herein does so provide viz. January 1, 1982. It is true that while sanctioning the scheme it is open to the Court to modify the said date and prescribe such date of amalgamation/transfer as it thinks appropriate in this facts and circumstances of the case. If the Court so specifies a date, there is little doubt that such date would be the date of amalgamation of transfer. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akes effect on and from the date of the order sanctioning the scheme. We are, therefore, of the opinion that the notices issued by the Income Tax Officer (impugned in the writ petition) were not warranted in law. The business carried on by the transferor company (subsidiary company) should be deemed to have been carried on for and on behalf of the transferee company. This is the necessary and the logical consequence of the Court sanctioning the scheme of amalgamation as presented to it. The order of the Court, sanctioning the scheme, the filing of the certified copies of the orders of the Court before the Registrar of Companies, the allotment of shares etc. may have all taken place subsequent to the date of amalgamation/transfer, yet the da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specific provision to that effect under the Central Excise Act or under the Chapter V of the Finance Act, 1994 cannot be appreciated inasmuch as the law declared by the Supreme Court is binding on all the Courts, in terms of the Article 141 of the Indian Constitution. The Hon'ble High Court of Delhi and the Kolkata having held the date of amalgamation as 1-4-2004 has to be considered as the correct date of amalgamation. If that be so, admittedly, the appellant cannot be held to be providing services to itself. The Tribunal in the case of Precot Mills - 2006- TIOL-818-CESTAT-BANG. = 2006 (2) S.T.R. 495 (Tri.-Bang.), has held that for leviability of service tax, there should be a service provider and a service receiver. No one renders service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said clause supports the respondent's stand that any business conducted by the respondents is to be held as having been conducted on behalf of the transferee company. As such, the service tax provided to the ITC Ltd. and Ansal Hotels Ltd. have to be considered as having been provided on behalf of the transferee company viz. ITC. Ltd., in which case, no service tax liability would arise against the service provider." 4.1 In view of the above observations of Tribunal, it can be concluded that the two entities namely JK Environ-tech LTD (JKETL) and the appellants are to be treated as one w.e.f 01.04.2013. It is not in dispute that the appellant themselves were manufacturer of excisable goods at the material time and therefore would have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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