2022 (7) TMI 1159

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.... by the Income Tax Appellate Tribunal, Kolkata, "B" Bench, Kolkata in ITA No.201/Kol/2010 for the assessment years 2006-07. The revenue has raised the following substantial question of law for consideration: i) Whether on the facts and in the circumstances of the case the Learned Income Tax Appellate Tribunal, "B" Bench, Kolkata erred in law in upholding the order of the CIT (Appeals)-VIII, Kolkata by deleting the addition of Rs.69,64,34,089/- made by the Assessing Officer on the ground that jurisdictional High Court has approved the scheme of Amalgamation without considering the ratio laid down by Hon'ble Apex Court in the case of Marshall & Sons as the Department has initiated separate proceedings considering the violation of ....

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....of his stand. These have been perused. I do not discern any latitude in these decisions which can empower any AO to challenge the jurisdictional High Court's order in this regard. Moreover, once the jurisdictional High Court approves of a scheme of Amalgamation, the suspicion of a colourable device therein is preclude. The AO has mentioned in his order that a 'a huge amount of money has been transferred to the serve by way of some transaction which is nothing but a colourable devise to put the reserve by way of some transaction which is nothing but a colourable devise to put into undisclosed and unaccounted income of the assessee company through the transferor companies. . .'. The assessment order itself is silent about the process of gener....

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....or companies. After considering the scope of such order, the tribunal discussed the facts and after placing reliance on the decision in the case of Vodafone Essar Gujarat Ltd. vs. Department of Income Tax, reported in (2013) 35 taxmann.com 397 (Gujarat) rejected the appeal filed by the revenue. With regard to whether the scheme of amalgamation is a colourable device, the tribunal elaborately considered the facts and also took note of various decisions and in particular, this Court approved the scheme of amalgamation and held the said issue against the revenue. Aggrieved by the same, the revenue is before us by way of this appeal. The Hon'ble Gujarat High Court in Vodafone Essar Gujarat Ltd. held as follows: "46. ... ... ... ....