2023 (4) TMI 895

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....es Act, 2013 has been preferred by two appellants i.e. transferor and transferee company against an order dated 23.12.2022 passed by National Company Law Tribunal, New Delhi Bench, Court II, New Delhi in Company Petition No.(CAA)-111(ND)/2021 connected with Company Application No.CA(CAA)-118(ND)/2021. By the said order learned NCLT accepting the objections raised by the Respondent/Income Tax Department has dismissed the application. The appellants had filed application under Section 230 to 232 of the Companies Act, 2013 mainly for the purposes of approval of scheme of amalgamation. The Appellant No.1 was transferor company whereas the appellant No.2 was transferee company. Before the Learned NCLT the Income Tax Department appeared and file....

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....r 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 unabsorbed 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. (2) Notwithstanding anything contained in sub-section (1), the accumulated loss shall not be set off or carried forward and the unabsorbed depreciation shall not be allowed in the assessment of the amalgamated company unless- (a) The amalgamating company- (i) has been engaged in the business, in which the accumulated los....

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....n 72A of the Income Tax Act,1961 and OF have no plans to dispose of all the assets and shall hold at least three-fourths of the book value of fixed assets of the Transferor Company for at least 5 years and shall continue the business of the Transferor company for the next 5 years. In case the Transferee company in future decides otherwise, it will not claim benefit of Section 72A of the Income Tax Act, 1961." After filing of the reply a rejoinder was filed behalf of Appellant No.2 alongwith an affidavit of undertaking dated 12th April, 2023. In the rejoinder enclosing therewith affidavit of undertaking on behalf of appellant No.2 it was confirmed to comply with the conditions of Section 72 A of Income Tax Act, 1961. In the affidavit of und....