TaxTMI 
TaxTMI 
2012 (8) TMI 623
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....to as 'company C' hereinafter, incorporated in Switzerland. The applicant had set up a wholly owned subsidiary in India under the Indian Companies Act, 1956. For convenience, the Indian company is henceafter referred to as 'I Co.' The applicant and its nominees together hold all the shares of I Co. 2. The main business of the applicant is to acquire, hold, administer and have disposition over financial participation in other companies. 'Company C' and the applicant intend to merge into a single legal entity by means of a merger by absorption pursuant to Article 3 paragraph 1a of the Swiss Merger Act. Thereby, all the assets and liabilities of the applicant would be assumed by 'company C' and the applicant would be dissolved without liquida....
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....n 195 of the Act? 5. If answer to question 1 is in the negative and/or the answer to question 2 is in the affirmative, then, whether the applicant is required to file a return of income under section 139 of the Act? 6. Whether the provisions of section 92 to 92F of the Act are attracted in case of the applicant as a result of vesting of shares of 'I' Co. held by the applicant, in Credit Suisse AG pursuant to the scheme of amalgamation? 4. It is argued on behalf of the applicant that in the merger which was proposed when the present application was filed, but which had been completed before the application was allowed under section 245R(2) of the Act, was not a transfer in the eye of law, that no consideration accrued to the applicant eve....
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....counsel. He also refers to the two decisions of the Supreme Court referred to in that Ruling. 6. The term 'merger' is not defined in the Companies Act or in the Income-tax Act. Section 2(1B) of the Income-tax Act defines 'amalgamation' in relation to companies as meaning 'merger' of one or more companies with another company, or merger of two or more companies to form one company. Section 47 (vi) of the Income-tax Act provides that nothing contained in Section 45 of the Act shall apply to any transfer in a scheme of amalgamation of a capital asset by the amalgamation company to the amalgamated company if the amalgamated company is an Indian company. Section 47(via) exempts any transfer of a similar capital asset by a foreign amalgamating c....
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....atisfied in this case but, condition no. (iii) is not satisfied as the shareholders of the applicant merging with 'company C' do not or cannot become shareholders of company 'C' as company 'C' is the only shareholder of the applicant. It is argued by counsel for the applicant that section 47 (via) contains a relaxation of this condition. That may be in respect of the shareholders proportion, reduced from 75% to 25%, but the condition itself is not dispensed with. Therefore, in this case, it cannot be postulated that section 47(via) takes the transaction out of the clutches of section 45 of the Act. 10. That would mean that section 45 of the Act would be attracted. But then, what is the consideration for the transfer? According to the Reven....