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TMI Blog2023 (3) TMI 1085X X X X Extracts X X X X X X X X Extracts X X X X ..... which has taken over the firm. We also noted from the chart filed before us i.e., percentage of holding that the aggregate of the shareholding in the company of the partners of the firm is not less than 50% of the total voting power and their shareholding continues to be as such for a period of 5 years from the date of succession. Another condition that the SEBI should approve the corporatization of the company is not applicable to the assessee company being a private limited company and that condition applies to the limited company. In view of the admitted factual aspects and as per provisions of law i.e., section 72A(6) of the Act and provisions of section 47(iii) of the Act or the proviso to clause xiv of section 47 of the Act, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled its return of income for assessment year 2008-09 on 30.09.2008 and subsequently filed revised return on 29.09.2009 admitting nil income after claiming deduction of Rs.2,95,01,806/- u/s.10AA of the Act for its SEZ unit and loss of Rs.49,41,561/- for its DTA unit. The case was selected for Scrutiny and notice u/s 143(2) of the Act dated 19.08.2010 was issued was issued. The AO reopened the assessment u/s 148 of the Act, on the ground that unabsorbed depreciation of Rs.97,53,913/- claimed by firm M/s.Srinivasa Exports International (SEI) has been wrongly allowed when the assessee did not claim depreciation on the assets transferred from M/s.Srinivasa Exports International but claimed as unabsorbed depreciation. After giving opportunity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to allow the appellant's claim of brought forward unabsorbed depreciation pertaining to the partnership firm as claimed by the appellant's company. Accordingly the appellant's grounds are allowed. Aggrieved, Revenue is in appeal before the Tribunal. 4. We have heard rival contentions and gone through facts and circumstances of the case. Before us, the ld.AR for the assessee stated that the assessee is eligible for claim of depreciation for full 365 days and not in proportion due to merger of the assessee company with that of M/s. Srinivasa Exports International in regard to unabsorbed depreciation. The ld.AR drew our attention to the conditions laid down in section 47(xiii) of the Act and the provisions governing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... previous year in the hands of the successor company, shall be deemed to be the income of the company chargeable to tax in the year in which such conditions are not complied with. 4.1 Further, he referred to the provisions of section 47 of the Act, transactions not regarded as transfer and argued that all the conditions in the present case are fulfilled and he filed details as under:- (a) all the assets and liabilities of the firm 3 [or of the association of persons or body of individuals] relating to the business immediately before the succession become the assets and liabilities of the company; Srinivasa Fashions have took over all the assets and liabilities of the firm SEI and incorporated in its balance Sheet of SFPL DTA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany and their Shareholding continues to be as such for a period of five years from the date of the succession; Following is the shareholding pattern of the partners of Srinivasa Exports International namely Mr. CV Ravindran and Mrs. Vijayalakshmi in Srinivasa Fashions Pvt Ltd before acquisition and post acquisition of Srinivasa Exports International SEI Partner Capital as on 01.03.2018 was as follows Mr C V Ravindran Rs.16650527 (1665053 Shares @10) Mrs Vijaylakshmi Rs. 509561 (50956 Shares @10) SFPL Share Holding before takeover Date of Allotment / Transfer Mr CV Ravindran Mrs. Vijayalakhsmi Total issued Shares Openin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut all the conditions mentioned in section 72A(6) of the Act not met with. 6. We noted that the assessee has filed complete details stating that it had fulfilled all the stipulated conditions u/s.47(iii) of the Act, that all the assets of the partnership firm became the assets of the assessee company from the date of merger. Even all the partners of the firm before the takeover have become shareholders of the assessee company in the same proportion and the partners have not got any additional benefit before the takeover other than the shares allotted in the company in the same proportion which has taken over the firm. We also noted from the chart filed before us i.e., percentage of holding that the aggregate of the shareholding in the co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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