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RAJESH BINDAL, VIJAY BISHNOI
Aspinwall And Co. Ltd. – Appellant
Versus
Inspecting Assistant Commissioner – Respondent
Key Points: - The amalgamated company cannot claim set-off of losses of the amalgamating company due to lack of statutory backing and required notices during amalgamation. (!) (!) - Absence of notice to the State Government/authorities during amalgamation affects applicability of set-off provisions under the Income Tax Act and Kerala Act. (!) (!) - Section 12 Kerala Act and Section 72A of the Income Tax Act do not permit set-off of pre-amalgamation losses in the absence of statutory support and timely notice; scheme terms alone (e.g., Clause 14.2) do not suffice. (!) (!) (!)
| Table of Content |
|---|
| 1. overview of appeals and facts. (Para 1 , 2 , 3) |
| 2. arguments for set-off of losses. (Para 4 , 5) |
| 3. counterarguments against set-off. (Para 6 , 10) |
| 4. court's reference to statutory definitions. (Para 7 , 8 , 9) |
| 5. court's observations on procedural requirements. (Para 11 , 12 , 13) |
| 6. conclusion on long-term losses and appeal dismissal. (Para 14 , 15) |
| 7. final order and costs. (Para 16 , 17) |
JUDGMENT :
Rajesh Bindal, J.
1. This order will dispose of five appeals.
FACTS OF THE CASES
2. In Civil Appeal No.7796 of 2012 challenge is to the order dated 23.09.2011 passed by the High Court1[High Court of Kerala at Ernakulam] in OTC No.3 of 2011 whereby order dated 22.03.2011 passed in AITA Nos.2/2010 by the Kerala Agricultural Income Tax and Sales Tax Appellate Tribunal2[Hereinafter referred to ‘Tribunal’], Addl. Bench, Ernakulam, was upheld.
2.1 In Civil Appeal No.19865 of 2017 challenge is to the order dated 27.07.2017 passed by the High Court in OTC No.11 of 2013 wherein order dated 30.11.2012 passed in AITA No.1/2011 by the Tribunal, was upheld.
2.2 In Civil Appeal No.13454 of 2015 challenge is to the order dated 27.07.2015 passed by the High Court in OTC No.1 of 2015 wherein
Singer India LTD. VS Chander Mohan Chadha - 2004 6 Supreme 259: No keywords or phrases indicating negative treatment (e.g., overruled, reversed, criticized). The entry describes a holding on eviction under Delhi Rent Control Act without reference to subsequent judicial treatment patterns.
Dalmia Power Limited VS Assistant Commissioner of Income Tax Circle 1, Trichy - 2019 0 Supreme(SC) 1387: No keywords or phrases indicating negative treatment. The entry summarizes holdings on amalgamation effects, tax assessments, and procedural relief under Sections 139(5) and 119(2)(b) without any indication of how later cases treated it.
Religare Finvest Limited VS State of NCT of Delhi - 2023 6 Supreme 496: No keywords or phrases indicating negative treatment. The entry states a principle on exercising power to quash criminal proceedings, phrased as a general judicial guideline ("Power to quash... should not be lightly exercised"), with no reference to overruling or reversal.
Pr. Commissioner of Income Tax, New Delhi VS Maruti Suzuki India Limited - 2019 0 Supreme(SC) 782: No keywords or phrases indicating negative treatment. The entry describes effects of amalgamation on entity existence and assessment proceedings ("Amalgamating entity ceases to exist... null and void"), without any signals of subsequent cases overruling or criticizing it.
The amalgamated company cannot claim set-off of losses from the amalgamating company as it lacks statutory support and required notifications during the amalgamation process.
Amalgamation of company – An assessment can always be made and is supposed to be made on Transferee Company taking into account income of both Transferor and Transferee Company.
A company amalgamated into another retains its previous year's assessment for tax purposes; re-assessment for amalgamation without new facts is impermissible.
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