TaxTMI 
TaxTMI 
2013 (2) TMI 128
X X X X Extracts X X X X
X X X X Extracts X X X X
.... petitioner has challenged notice dated 20th June 2012 issued by the respondent under section 142(1) of the Income Tax Act, 1961, calling upon one M.S.Khurana Infrastructure and Toll Road Pvt. Ltd. (a company registered under the Companies Act and hereinafter to be called as 'the transferor company') to furnish certain details for the assessment year 2010-11. The petitioner is also a company registered under the Companies Act, which shall be hereinafter to be referred to as 'the transferee company'. Under a scheme of amalgamation, copy of which is produced at Annexure G to the petition, entered into between the petitioner and the transferor company, it was resolved to merge the transferor company into the transferee company. As per definiti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....2011 passed in Company Petition No.161 of 2010 sanctioned the scheme as presented to it. Significantly in such order, the Court did not make any deviation in the appointed date as defined in the scheme itself. Thus, by virtue of the scheme being sanctioned by the High Court, by order dated 18th March 2011, the transferor company merged in the transferee company, however, with effect from the appointed date, namely, 1.4.2009. 5. It is the case of the petitioner that by virtue of such amalgamation, now since the transferor company no longer survives from 1.4.09, question of assessing such company for the purpose of income tax would not survive. It is on this ground that the notice issued by the respondent calling upon the transferor company ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....must be remembered that before applying to the Court under Section 391(1) a scheme has to be framed and such scheme has to contain a date of amalgamation/transfer. The proceedings before the Court may take sometime; indeed, they are bound to take some time because several steps provided by Sections 391 to 394-A and the relevant Rules have to be followed and complied with. During the period the proceedings are pending before the Court, both the amalgamating units, i.e., the Transferor Company and the Transferee Company may carry on business, as has happened in this case but normally provision is made for this aspect also in the scheme of amalgamation. In the scheme before us, clause 6(b) does expressly provide that with effect from the trans....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... adopted then several complications will ensue in case the Court refuses to sanction the scheme of amalgamation. We do not see any basis for this apprehension. Firstly, an assessment can always be made and is supposed to be made on the Transferee Company taking into account the income of both the Transferor and Transferee Company. Secondly, and probably the more advisable course from the point of view of the Revenue would be to make one assessment on the Transferee Company taking into account the income of both of Transferor or Transferee Companies and also to make separate protective assessments on both the Transferor and Transferee Companies separately. There may be a certain practical difficulty in adopting this course inasmuch as separa....