TaxTMI 
TaxTMI 
2008 (3) TMI 56
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....laimed the benefit of Section 72A of the Income-tax Act (hereinafter referred to as the Act) to have the said unabsorbed depreciation of DHCL as the depreciation of the respondent. By letter in G.I.No.AX1-015/2000-01, dated 7.3.2003, certain particulars were called for from the respondent by the Department and thereupon, the assessment was completed by the Deputy Commissioner of Income-tax, Company Circle-I(1)(the then Assessing Officer), vide assessment order dated 28.3.2003 under Section 143(3) of the Act and the benefit of Section 72-A of the Act was availed by the respondent. It is seen that the respondent has preferred an appeal against certain issues pertaining to set-off of the minimum alternate tax, before the Commissioner of Income-tax (Appeals) III, Chennai under Section 246-A of the Act, and the same was disposed on 21.8.2003 in ITA.No.99/03-04/A.III and further appeal is pending before the Income-tax Appellate Tribunal, Chennai. 3. While such is the position, the appellants herein issued a notice under Section 148 of the Act in PAN.AX.1/015/2000-01, dated 30.3.2005, stating that they have reason to believe that the income of the responde....
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....y other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned (heareafter in this section and in sections 148 to 153 referred to as the relevant assessment year): Provided that where an assessment under sub-section (3) of section 143 or this section has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under section 139 or in response to a notice issued under sub-section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year...." 5. Further, under Section 149 of the Act, the time limit for notice has been prescribed as follows: "Section 149: No notice under Section 148 shall be issued for the releva....
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...., we cannot find fault with the impugned action of the appellant. 8. Section 72A of the Act deals regarding the 'carry forward and set off of accumulated loss and unabsorbed depreciation allowance in amalgamation or demerger, etc.' For the sake of better appreciation, we extract hereunder the said Section: "72A: (1) where there has been an amalgamation of a company owning an industrial undertaking or a ship or a hotel with another company or an amalgamation of a banking company referred to in clause (c) of section 5 of the Banking Regulation Act, 1949 (10 of 1949) with a specified bank, then, notwithstanding anything contained in any other provision of this Act, the accumulated loss and the unabsorbed depreciation of the amalgamating company shall be deemed to be the loss or, as the case may be, allowance for depreciation of the amalgamated company for the previous year in which the amalgamation was effected, and other provisions of this Act relating to set off and carry forward of loss and allowance for depreciation shall apply accordingly...." 9. Therefore, the prime condition for claiming set-off under this Section is that the company amalgamating must be owning a....
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....ution of electricity or any other form of power; or (iiia) the business of providing telecommunication services, whether basic or cellular, including radio paging, domestic satellite service, network of trunking, broadband network and internet services; or (iv) mining; or (v)the construction of ships, aircrafts or rail systems. (clause (iiia) was inserted by Finance Act, 2002 w.e.f. 1.4.2003) 13. Thus, the legislature has designedly used the expressions and the expression has been so widely defined as not to leave anything necessary out of its comprehension and purview and there is no ambiguity. In the case on hand, there is no dispute regarding the fact that the amalgamation was approved on 18.4.2000 and the amalgamation took place in the assessment year 2000-2001 and that the set-off was claimed by the respondent in the assessment year 2000-2001. Therefore, the above amendment of Section 72A(7)(aa) of the Act is very well applicable to the case on hand. Thus, when the term 'industrial undertaking' has been well defined in the Income-tax Act, which is the matter on hand, the contentions of the respondent based on the judgments delivered....
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....espondent. It is not the case of the respondent that without giving any opportunity to them, the set-off availed by them was reviewed. In fact, the appellant has given notice to the respondent to explain regarding the set-off availed on an erroneous perception of law earlier. If such wrong claims availed by the assessees, particularly quoting wrong application of law are not allowed to be reviewed, a chaotic situation will arise, putting a big dent to the exchequer, having negative repercussions on the developmental activities of the country. In this factual backdrop of the case, where the reassessment has been ordered not because of a change of opinion, but having found out the illegal gain made by the respondent, the judgment of the Division Bench of the Madhya Pradesh High Court in BADRI PRASAD RAMESHWAR PRASAD vs. COMMISSIONER OF INCOME-TAX [(1996) 219 ITR PAGE 441] relied on by the learned counsel for the respondent also has no application to the facts of the case on hand. 15. It has been argued on behalf of the appellant Department that as against certain issues pertaining to set-off of the minimum alternate tax, the respondent preferred....