TaxTMI 
TaxTMI 
TaxTMI 
2011 (9) TMI 837
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....rs, the Hon'ble High Courts allowed the amalgamation of the two companies with the parent company, ITC Ltd. with effect from 1.4.2004 i.e. the appointed date as per Amalgamation Scheme duly approved by the Hon'ble High Courts. As such, according to the respondents, M/s ITC Hotels Ltd. and M/s Ansal Hotels Ltd. ceased to exist as independent entities with effect from 1.4.2004 onwards. Accordingly, they filed refund claims amounting to Rs.88,54,473/- of service tax paid during the period, on the ground that consequent upon amalgamation of the two with the holding company with effect from the appointed date i.e. 1.4.04, they were one and the same entities and as such, it has to be held that such service provided by ITC Hotels Ltd. was to itself and not liable to tax. 4. The original adjudicating authority rejected the said refund claim on the ground that the effective date for amalgamation was the last of the dates on which all the orders, sanctions, approvals, consents, conditions, matters or filings referred to in clause 15 of the amalgamation have been obtained or filed. The last date for such approvals was 30.6.2005. Inasmuch as the ITC Ltd. filed application with the Registrar o....
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....le legal entity or person. I rely on judgments of the Hon'ble Tribunal in the case of Precot Mills Ltd. vs. C.C.E., Tirupati - 2006-TIOL-818-CESTAT-BANG. And Kwality Zipper Ltd. vs. C.C.E., Kanpur - 2002 (145) ELT 296 (Tri-Del.) in this regard. However, I find that the refund of service tax claimed by the appellants had to he sanctioned only after verifying and confirming that fact that the amount of service tax deposited for which refund had been claimed, pertained to the services provided by M/s ITC Hotels Limited Ltd. to M/s ITC Ltd. and M/s Ansals Hotels Ltd. and not to some company or person other than M/s ITC Ltd. and M/s Ansals Hotels Ltd. In view of the above, I set aside the impugned order with directions to the adjudicating authority to consider sanctioning of the said refund claim by verifying the above facts and corresponding original duty paying documents and thereafter sanction the amount of refund which pertain to the service tax paid on account of services provided by M/s ITC Hotels Limited Ltd. to M/s ITC Ltd. and M/s Ansals Hotels Ltd. only. The appellants are also directed to produce all the relevant documentary evidence in support of their claim that the service....
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.... DR that the incidence of tax under the Finance Act, 1994 i.e. providing management consultant services has occurred before the effective date of amalgamation. Relying upon the Hon'ble Supreme Court decision in the case of Wallace Flour Mills Co. Ltd. vs. Collector of Central Excise - 1989 (44) ELT 598 (SC), he submits that the ratio of the law declared by the Hon'ble Apex Court to the effect that excise duty is to be determined at the rate prevalent on the date of removal. Similarly, the taxable event being providing of service by the service provider to the service receiver, the Commissioner (Appeals) order to the contrary cannot be sustained. He has further submitted that the scheme sanctioned by the Court has to be implemented by the companies and it is achieved filing certified copies with the Registrar of the Companies amalgamation gets statutory force from that date only and the position cannot be varied by an act of the parties. He accordingly prays for setting aside the impugned order and allowing the appeal. 7. Countering the above arguments, the learned Advocate draws our attention to the order dated 2.2.2005 passed by the Hon'ble High Court of Delhi sanctioning the sch....
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....sent appeal is as to whether the appointed date as approved by the Hon'ble High Court i.e. 1.4.2004 is required to be taken as the date of amalgamation of ITC Hotels Ltd. and Ansal Hotels Ltd. with ITC Ltd. or the date on which the entire formalities were completed and the application was filed with the Registrar of the Companies i.e. whether 23.3.2005 should be taken as the relevant date for amalgamation. We find that the law on the issue stands settled by the Hon'ble Supreme Court decision in the case of Marshall Sons & Co. (India) Ltd. vs. Income Tax Officer referred supra. It stands held in para 14 of the said judgement as under: "Every scheme of amalgamation has to necessarily provide a date with effect from which the amalgamatin/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. But where th....
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....k of Upper India Ltd. AIR 1919 PC 9." As is seen from the above, the Hon'ble Apex Court has observed that it is the date of amalgamation as presented in the scheme which has to be taken as the 'transfer date', inasmuch as the Court's approval may come much later. Further, it is seen from the highlighted portion of the above reproduced order that the Hon'ble Supreme Court observed that the scheme of amalgamation would not take effect on and from the date of the order sanctioning the scheme but would relate back to the transfer date as presented in the amalgamation scheme. The business carried out by the subsidiary company should be deemed to have been carried on and for on behalf of the transferee company. As such, by taking into account the other facts and circumstances of the case, the Court observed that subsequent to the sanction of the scheme, formalities of filing certified copies of the order before the Registrar of the companies, the allotment share etc. may take some time but the date of amalgamation would be the date as presented in the scheme. 10. The law declared by the Apex Court is binding and is required to be followed. The submission of the learned DR that the rati....
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....tand 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. 11. The decision of the Tribunal in the case of Technocraft Industries (I) Ltd. - 2000 (120) ELT 106 which stands relied upon by the Revenue was taken note of by the Tribunal in a subsequent decision in the case of C.C.E.., Trichy vs. IOC Ltd. reported as - 2011-TIOL-718-CE5TAT-MAD. For better appreciation, we reproduce the para 7 of the decision.: "7. The case of C.C.E., Chandigarh vs. Nahar Industrial Enterprises Ltd. (cited supra) relied by the Ld. SDR does not support his case. In the said decision, it has been held that when the Hon'ble High Court has given effective date which was different from the date of approval granted by the Hon'ble High Court, the former date should prevail. In the present case, the Ministry's order clearly specifies the effective date, which is 01.04.04. The....