DCIT, Kumbakonam v. M/s. Tamil Nadu State Transport Corporation Kumbakonam Ltd., Kumbakonam

ITA 34/CHNY/2010 | 2003-2004
Pronouncement Date: 30-09-2011 | Result: Dismissed

Appeal Details

RSA Number 3421714 RSA 2010
Assessee PAN AAACV2112P
Bench Chennai
Appeal Number ITA 34/CHNY/2010
Duration Of Justice 1 year(s) 8 month(s) 19 day(s)
Appellant DCIT, Kumbakonam
Respondent M/s. Tamil Nadu State Transport Corporation Kumbakonam Ltd., Kumbakonam
Appeal Type Income Tax Appeal
Pronouncement Date 30-09-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted D
Tribunal Order Date 30-09-2011
Date Of Final Hearing 21-09-2011
Next Hearing Date 21-09-2011
Assessment Year 2003-2004
Appeal Filed On 11-01-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH CHENNAI BEFORE SHRI HARI OM MARATHA JUDICIAL MEMBER AND SHRI ABRAHAM P. GEORGE ACCOUNTANT MEMBER I.T.A. NO. 31/MDS/2010 (ASSESSMENT YEAR : 2001-02) THE DEPUTY COMMISSIONER OF INCOME TAX CIRCLE I KRISHNASWAMY ROAD GANDHI NAGAR KUMBAKONAM. (APPELLANT) V. M/S TAMIL NADU STATE TRANSPORT CORPORATION (KUM DIV. IV) LTD. PUDUKOTTAI 27 RAILWAY STATION NEW ROAD KUMBAKONAM 612 001. PAN : AAACV2112P (RESPONDENT) I.T.A. NO. 32 34 35 36 & 37/2010 (ASSESSMENT YEARS : 2002-03 2003-04 2003-04 20 04-05 AND 2005-06) THE DEPUTY COMMISSIONER OF INCOME TAX CIRCLE I KRISHNASWAMY ROAD GANDHI NAGAR KUMBAKONAM. (APPELLANT) V. M/S TAMIL NADU STATE TRANSPORT CORPORATION (KUM DIV. I) LTD. / M/S TAMIL NADU STATE TRANSPORT CORPORATION (KUMBAKONAM) 27 RAILWAY STATION NEW ROAD KUMBAKONAM 612 001. PAN : AAACC1294K (RESPONDENT) I.T.A. NO. 33/MDS/2010 (ASSESSMENT YEAR : 2002-03) THE DEPUTY COMMISSIONER OF INCOME TAX CIRCLE I KRISHNASWAMY ROAD GANDHI NAGAR KUMBAKONAM. (APPELLANT) V. M/S TAMIL NADU STATE TRANSPORT CORPORATION (KUM DIV. II) LTD. TRICHY 27 RAILWAY STATION NEW ROAD KUMBAKONAM 612 001. PAN : AAACD1269K (RESPONDENT) APPELLANTS BY : SHRI ANIRUDH RAI CIT-DR RESPONDENT BY : SHRI S. SRIDHAR ADVOCATE DATE OF HEARING : 21.09.2011 DATE OF PRONOUNCEMENT : 30.09.2011 I.T.A. NOS. 31 TO 37/MDS/10 2 O R D E R PER BENCH : THESE APPEALS OF THE REVENUE INVOLVE CERTAIN COMM ON ISSUES AND HENCE ARE DISPOSED OF THROUGH THIS CONSOLIDATED ORDER. 2. BEFORE TAKING UP GROUNDS IN EACH APPEAL ONE OF THE ISSUES PERMEATES THROUGH ALMOST ALL THE APPEALS IS TACKLE D FIRST. THE ISSUE IS REGARDING EFFECTIVE DATE OF AMALGAMATION OF VARI OUS COMPANIES INVOLVED IN THESE APPEALS. 3. FACTS APROPOS ARE THAT GOVERNMENT OF TAMIL NADU AS A MEASURE OF RESTRUCTURING VARIOUS TRANSPORT CORPORAT IONS IN TAMIL NADU TOOK A DECISION TO MERGE THREE OF ITS CORPORA TIONS MAINLY TAMIL NADU STATE TRANSPORT CORPORATION (KUMBAKONAM DIVISION II) LTD. TAMIL NADU STATE TRANSPORT CORPORATION (KUMBA KONAM DIVISION-III) LTD. TAMIL NADU STATE TRANSPORT CORP ORATION (KUMBAKONAM DIVISION-IV) LTD. HAVING ITS REGISTERED OFFICES AT TRICHIRAPALLI KARAIKUDI AND PUDUKOTTAI RESPECTIVEL Y INTO TAMIL NADU STATE TRANSPORT CORPORATION (KUMBAKONAM DIVISION-I) LTD. HAVING ITS REGISTERED OFFICE AT KUMBAKONAM. PURSUANT TO SUCH DECISION TAMIL I.T.A. NOS. 31 TO 37/MDS/10 3 NADU STATE TRANSPORT CORPORATION (KUMBAKONAM DIVISI ON I) LTD. AND TAMIL NADU STATE TRANSPORT CORPORATION (KUMBAKONAM DIVISION-II) LTD. APPROVED A SCHEME OF AMALGAMATION BY A RESOLUT ION PASSED IN AN EXTRAORDINARY GENERAL MEETING OF ITS MEMBERS HEL D ON 28.12.2001 AND TAMIL NADU STATE TRANSPORT CORPORATION (KUMBAKO NAM DIVISION III) LTD. AND TAMIL NADU STATE TRANSPORT CORPORATIO N (KUMBAKONAM DIVISION IV) LTD. APPROVED A SCHEME OF AMALGAMATION BY A RESOLUTION PASSED IN AN EXTRAORDINARY GENERAL MEETING HELD ON 29.12.2001. THE DRAFT OF THE PROPOSED ORDERS OF AMALGAMATION WE RE PUBLISHED IN TWO NEWSPAPERS AS REQUIRED UNDER LAW ON 7.12.2002 I NVITING OBJECTIONS AND SUGGESTIONS TO THE SAID SCHEME. APP LICATION FOR APPROVAL OF THE SCHEME OF AMALGAMATION WAS SUBMITTE D TO THE DEPARTMENT OF COMPANY AFFAIRS ON 7.10.2002. DEPART MENT OF COMPANY AFFAIRS IN EXERCISE OF POWERS CONFERRED TO IT UNDER SUB- SECTION (1) AND (2) OF SECTION 396 OF THE COMPANIES ACT 1956 PASSED S.O.1477(E) DATED 30.12.2003 APPROVING THE A MALGAMATION OF TNSTC (KUMBAKONAM DIVISION II) LTD. TNSTC (KUM BAKONAM DIVISION III) LTD. AND TNSTC (KUMBAKONAM DIVISION IV) LTD. WITH TNSTC (KUMBAKONAM DIVISION I) LTD. IN THE S.O.14 77(E) DATED 30.12.2003 ISSUED BY DEPARTMENT OF COMPANY AFFAIRS UNDER MINISTRY OF FINANCE GOVERNMENT OF INDIA IT WAS MENTIONED A T SUB-CLAUSE (2) I.T.A. NOS. 31 TO 37/MDS/10 4 OF CLAUSE 1 THAT THE SAID ORDER WAS TO COME TO EFFE CT FROM THE DATE OF PUBLICATION IN THE OFFICIAL GAZETTE. IN THE DEFINI TION CLAUSE 2 ALSO IT WAS MENTIONED THAT APPOINTED DAY MEANT THE DAY O N WHICH ORDER WAS TO BE NOTIFIED IN OFFICIAL GAZETTE VIZ. 30 TH DECEMBER 2003. AT CLAUSE 4 OF THE SAID ORDER IT WAS MENTIONED THAT E NTIRE BUSINESS AND UNDERTAKING OF THE TNSTC (KUMBAKONAM DIVISION II) LTD. TNSTC (KUMBAKONAM DIVISION III) LTD. AND TNSTC (KUMBAKON AM DIVISION IV) LTD. WAS TO VEST IN THE RESULTING COMPANY NAM ELY TNSTC (KUMBAKONAM DIVISION I) LTD. HOWEVER SUB-CLAUSE (II) OF CLAUSE 4 GAVE A SPECIFIC DIRECTION WITH REGARD TO THE ACCOUN TING OF THE AMALGAMATION AND THIS SUB-CLAUSE IS REPRODUCED AS U NDER:- (II) FOR ACCOUNTING PURPOSES THE AMALGAMATION SHAL L BE EFFECTED WITH REFERENCE TO THE AUDITED ACCOUNTS AND BALANCE SHEETS AS ON THE 31 ST MARCH 2001 OF THE SAID COMPANIES AND THE TRANSACTIONS THEREAFTER SHALL BE POOLED INTO A COMM ON ACCOUNT. THE DISSOLVED COMPANIES SHALL NOT BE REQUIRED TO PR EPARE ITS FINAL ACCOUNTS AS ON ANY LATER DATE AND THE RESULTING COM PANY SHALL TAKE OVER ALL ASSETS AND LIABILITIES ACCORDING TO T HE BALANCE SHEET AS ON 31.03.2001 OF THE DISSOLVED COMPANIES AND ACC EPT FULL RESPONSIBILITY FOR ALL TRANSACTIONS THEREAFTER. EXPLANATION - THE UNDERTAKING OF THE DISSOLVED COMPANIES SHALL INCLUDE DEVELOPMENT REBATE RESERVE IF ANY AL L RIGHTS POWERS AUTHORITIES AND PRIVILEGES AND ALL PROPERTY MOVABLE OR IMMOVABLE INCLUDING CASH BALANCES RESERVES REVEN UE BALANCES INVESTMENT ALL OTHER INTERESTS AND RIGHTS IN OR AR ISING OUT OF SUCH PROPERTY AS MAY BELONG TO OR BE IN THE POSSESSION OF THE DISSOLVED COMPANIES IMMEDIATELY BEFORE THE APPOINTE D DAY AND I.T.A. NOS. 31 TO 37/MDS/10 5 ALL BOOKS ACCOUNTS AND DOCUMENTS RELATING THERETO AND ALSO ALL DEBTS LIABILITIES DUTIES AND OBLIGATIONS OF WHATE VER KIND THEN EXISTING OF THE DISSOLVED COMPANIES. AT CLAUSE 8 IT WAS SPECIFICALLY MENTIONED THAT ALL TAXES IN RESPECT OF PROFITS AND GAINS INCLUDING ACCUMULATED LOSSES AND UNABSORBED DEPRECIATION OF THE BUSINESS CARRIED OUT BY THE DI SSOLVED COMPANIES BEFORE THE APPOINTED DAY WOULD BE PAYABLE BY THE RE SULTING COMPANY. CERTAIN OTHER PROVISIONS WERE ALSO THERE REGARDING EMPLOYMENT OF THE OFFICERS POSITION OF DIRECTORS MERGER OF PROVIDEN T FUND AND OTHER BENEFITS ETC. THOUGH FOR ACCOUNTING PURPOSES AS MENTIONED ABOVE THE DATE OF AMALGAMATION WAS TO BE TAKEN AS 31 ST MARCH EVEN FOR SUBSEQUENT YEARS IT SEEMS TNSTC (KUMBAKONAM DIVISI ON II) LTD. TNSTC (KUMBAKONAM DIVISION III) LTD. AND TNSTC (KU MBAKONAM DIVISION IV) LTD. WERE FILING THEIR RETURNS OF THE IR INCOME. HOWEVER FROM ASSESSMENT YEAR 2004-05 RETURN OF THE AMALGAM ATING COMPANY NAMELY TNSTC (KUMBAKONAM DIVISION I) LTD . REFLECTED THE AMALGAMATED POSITION. IT IS TO BE NOTED THAT T HE SAID TNSTC (KUMBAKONAM DIVISION I) LTD. HAD NOT FILED ANY CON SOLIDATED RETURN FOR THE INTERVENING YEARS. NEVERTHELESS DURING TH E COURSE OF ASSESSMENTS IT WAS ARGUED BY THE AMALGAMATING COMP ANIES THAT THE AMALGAMATION HAVING COME INTO EFFECT ON 31 ST MARCH 2001 IN VIEW OF THE DECISION OF HON'BLE APEX COURT IN THE CASE OF M ARSHALL SONS AND I.T.A. NOS. 31 TO 37/MDS/10 6 CO. (INDIA) LTD. V. ITO (223 ITR 809) NO ASSESSMEN T COULD BE DONE ON SUCH COMPANIES AFTER THE DATE OF AMALGAMATION. HOWEVER ASSESSING OFFICER WAS NOT APPRECIATIVE OF THIS CONT ENTION AND HE REJECTED THIS CLAIM OF THE AMALGAMATING COMPANIES A ND PROCEEDED WITH THEIR ASSESSMENTS MAKING CERTAIN ADDITIONS TO THE RETURNED INCOME. CONCERNED COMPANIES MOVED IN APPEAL BEFORE THE CIT(APPEALS) ON THIS ISSUE AS WELL AS ON CERTAIN OT HER ADDITIONS/DISALLOWANCES MADE AND CIT(APPEALS) RELYI NG ON THE DECISION OF MARSHALL SONS AND CO. (INDIA) LTD. (SUP RA) HELD THAT THE DATE OF AMALGAMATION HAD TO BE CONSIDERED AS 31.3.2 001 AND THEREFORE ASSESSMENT ORDERS PASSED ON THE AMALGAMA TING COMPANIES FOR YEARS SUBSEQUENT TO 31.3.2001 WERE NU LL AND VOID. 4. SINCE THE ABOVE ISSUE HAS A BEARING ON ALMOST AL L THE APPEALS NOW BEFORE US LEARNED D.R. STARTED HIS ARGUMENTS O N THIS. READING FROM S.O. 1477(E) DATED 30.12.2003 LEARNED D.R. ST RONGLY SUBMITTED THAT THE APPOINTED DATE WAS THE DATE OF PUBLICATION IN THE OFFICIAL GAZETTE WHICH ADMITTEDLY WAS ON 30.12.2003. ACCORD ING TO HIM THE AMALGAMATION CAME INTO EFFECT ON THE APPOINTED DAY WHICH WAS 30.12.2003 AND THEREFORE THE DEPARTMENT WAS WELL W ITHIN ITS POWERS TO MAKE ASSESSMENTS FOR ALL THE INTERVENING YEARS U PTO ASSESSMENT I.T.A. NOS. 31 TO 37/MDS/10 7 YEAR INCLUDING 2003-04 ON THE AMALGAMATING COMPANIE S. LEARNED D.R. SUBMITTED THAT IT WAS ONLY FOR ACCOUNTING PURP OSES THE AMALGAMATION DATE WAS TO BE CONSIDERED AS 31 ST MARCH 2001 BUT IN RESPECT OF TAXATION IT WAS CLEARLY STIPULATED THAT BEFORE THE APPOINTED DATE DISSOLVED COMPANIES WERE LIABLE. THEREFORE ACCORDING TO HIM LD. CIT(APPEALS) FELL IN ERROR IN DECIDING THIS ISS UE IN FAVOUR OF ASSESSEE ESPECIALLY WHEN THE AMALGAMATED COMPANY NAMELY TNSTC (KUMBAKONAM DIVISION I) LTD. HAD NOT FILED A RETURN OF INCOME BASED ON THE CONSOLIDATED ACCOUNTS DURING T HE INTERVENING PERIODS. 5. PER CONTRA LEARNED A.R. SUBMITTED THAT THE DECI SION OF LD. CIT(APPEALS) FOR ASSESSMENT YEAR 2003-04 IN RESPECT OF TNSTC (KUMBAKONAM DIVISION II) LTD. IN FAVOUR OF THE ASS ESSEE WAS ACCEPTED BY THE DEPARTMENT AND FOR ARRIVING AT THIS DECISION LD. CIT(APPEALS) HAD RELIED ON THE DECISION OF HON'BLE APEX COURT IN THE CASE OF MARSHALL SONS AND CO. (INDIA) LTD. (SUPRA). HON'BLE APEX COURT IN THIS DECISION HAD HELD THAT THE DATE OF EF FECT OF APPROVAL OF A SCHEME OF AMALGAMATION WOULD BE THE DATE OF AMALGAM ATION AS PROVIDED IN THE SCHEME AND NOT AS THE DATE OF APPRO VAL OF SUCH AMALGAMATION BY A COMPANY COURT. I.T.A. NOS. 31 TO 37/MDS/10 8 6. WE HAVE PERUSED THE RELEVANT ORDERS OF A.O. AS W ELL AS CIT(APPEALS) AND ALSO HEARD THE RIVAL SUBMISSIONS C AREFULLY. THERE IS NO DISPUTE THAT TNSTC (KUMBAKONAM DIVISION II) LTD . TNSTC (KUMBAKONAM DIVISION III) LTD. AND TNSTC (KUMBAKON AM DIVISION IV) LTD. HAD DECIDED TO AMALGAMATE WITH TNSTC (KUM BAKONAM DIVISIONI) LTD. AND THE SCHEME OF AMALGAMATION WAS APPROVED BY RESOLUTIONS PASSED IN EXTRAORDINARY GENERAL MEETING S OF ITS MEMBERS HELD ON 28.12.2001 AND 29.12.2001 RESPECTIVELY. IT IS ALSO NOT DISPUTED THAT PUBLICATION WAS EFFECTED FOR SUCH SCH EME OF AMALGAMATION IN TWO NEWSPAPERS ON 7.10.2002. NEVER THELESS THE ORDER APPROVING THE AMALGAMATION OF THE SAID COMPAN IES WAS PASSED BY THE DEPARTMENT OF COMPANY AFFAIRS ONLY ON 30 TH DECEMBER 2003 VIDE S.O. 1477(E). THE COURSE OF EVENTS LEADING TO SUCH ORDER HAS BEEN CLEARLY NARRATED IN THE PREAMBLE TO SUCH ORDER . IT IS ACKNOWLEDGED THEREIN THAT THE SCHEME OF AMALGAMATIO N WAS APPROVED IN RESOLUTIONS PASSED ON 28.12.2001 AND 29 .12.2001 IN EXTRAORDINARY GENERAL MEETINGS OF THE CONCERNED COM PANIES. OF COURSE IT IS MENTIONED THAT THE APPOINTED DAY ON W HICH THE ORDER WAS TO COME INTO FORCE WAS THE DATE OF NOTIFICATION OF THE ORDER IN OFFICIAL GAZETTE WHICH HAPPENED TO BE 30 TH DECEMBER 2003. THE QUESTION I.T.A. NOS. 31 TO 37/MDS/10 9 IS WHETHER THE AMALGAMATION CAN BE DEEMED TO HAVE B EEN EFFECTED ON 31.3.2001 OR ONLY ON 30.12.2003. THERE IS A SPE CIFIC MENTION IN CLAUSE 4(II) OF THE ORDER WHICH HAS BEEN REPRODUCE D AT PARA 3 ABOVE THAT AFTER 31 ST MARCH 2001 THE TRANSACTIONS OF ALL THE COMPANIES HAD TO BE POOLED INTO A COMMON ACCOUNT AND THE DISSOLVE D COMPANIES WERE NOT REQUIRED TO PREPARE ANY FINAL ACCOUNTS FOR ANY LATER DATE. THE TERMINOLOGY USED IN THE SAID CLAUSE IS VERY CLE AR AND UNAMBIGUOUS. WHEN THE NOTIFICATION ITSELF WAS DATE D 30 TH DECEMBER 2003 AND WHEN SUCH NOTIFICATION CONTAINED THEREIN A DIRECTION TO POOL THE TRANSACTIONS IN A COMMON ACCOUNT AFTER 31 ST MARCH 2001 IN OUR OPINION IT IS A CLEAR EVIDENCE THAT THE NOTIFICATI ON RELATED BACK TO THE DATE OF SCHEME OF AMALGAMATION AS PASSED BY THE EXT RAORDINARY GENERAL MEETINGS OF THE RESPECTIVE COMPANIES OR AT THE LATEST 31 ST MARCH 2001 BEING THE DATE STIPULATED AT CLAUSE 4(I I) OF THE ORDER. IN THE CASE OF MARSHALL SONS AND CO. (INDIA) LTD. (SUP RA) HON'BLE APEX COURT WAS CONSIDERING THE DATE OF AMALGAMATION WHER E A SCHEME OF AMALGAMATION WAS PUT FOR APPROVAL BEFORE THE COMPAN Y COURT. IT WAS CLEARLY HELD BY HON'BLE APEX COURT THAT THE AMALGAM ATION HAD TO BE DEEMED TO HAVE BEEN TAKEN PLACE AS PER THE DATE SPE CIFIED IN THE SCHEME OF AMALGAMATION THOUGH SANCTION BY THE COMP ANY COURT WAS RECEIVED AT A LATER DATE AND THOUGH THE SCHEME OF A MALGAMATION WAS I.T.A. NOS. 31 TO 37/MDS/10 10 NOTIFIED BY THE REGISTRAR OF COMPANIES AFTER SUCH D AY. HON'BLE APEX COURT HELD THAT IN SUCH AN EVENTUALITY WHEN THERE WAS SIGNIFICANT GAP BETWEEN THESE TWO DATES THE ASSESSMENTS FOR THE IN TERVENING PERIOD WERE SUPPOSED TO BE MADE AND COULD ALWAYS BE MADE O N THE TRANSFEREE COMPANY ON THE INCOME OF BOTH TRANSFEREE AND TRANSFERRED COMPANIES AND EVEN A BEST OF JUDGEMENT ASSESSMENT C OULD BE RESORTED TO IF NO CONSOLIDATED RETURNS WERE FILED. ON THE ARGUMENT TAKEN BY THE REVENUE THAT IF THE SCHEME OF AMALGAMA TION WAS NOT SANCTIONED BY THE COMPANY COURT THE REVENUE WOULD BE LEFT IN LURCH HON'BLE APEX COURT MADE AN OBSERVATION THAT A SEPAR ATE PROTECTIVE ASSESSMENT COULD BE MADE ON THE TRANSFERRED COMPANI ES ALSO. THOUGH IN GIVEN INSTANCE HERE THE SCHEME OF AMALGA MATION WAS TO BE SANCTIONED BY THE CENTRAL GOVERNMENT AND NOT BY COMPANY COURT THIS WAS ONLY DUE TO THE CHANGES IN COMPANIES ACT 1956 OVER A PERIOD OF TIME RESULTING IN SHIFTING OF CERTAIN PO WERS. HENCE IN OUR OPINION THE QUESTION OF NECESSITY OF A PROTECTIVE ASSESSMENT IN THE CASES BEFORE US WAS ABSENT SINCE THE CONCERNED AMA LGAMATING COMPANIES HAD POINTED OUT TO THE ASSESSING OFFICER THAT THE AMALGAMATION STOOD APPROVED DURING THE COURSE OF TH E RESPECTIVE ASSESSMENT PROCEEDINGS. BY VIRTUE OF HON'BLE APEX COURT IN THE CASE OF MARSHALL SONS AND CO. (INDIA) LTD. (SUPRA) THE APPROVAL OF I.T.A. NOS. 31 TO 37/MDS/10 11 THE SCHEME OF AMALGAMATION RELATES BACK TO THE DATE MENTIONED IN THE AMALGAMATION SCHEME. HENCE WE ARE OF THE OPIN ION THAT AFTER 31 ST MARCH 2001 THERE COULD NOT HAVE BEEN ANY ASSESSM ENT DONE ON THE AMALGAMATING COMPANIES AND SUCH ASSESSMENT W HEREVER HELD TO BE NULL AND VOID BY THE CIT(APPEALS) APPEA LS CANNOT BE FAULTED. 7. NOW THAT THE BASIC ISSUE PERMEATING THROUGH VARI OUS ASSESSMENTS ASSAILED BY THE DEPARTMENT HAS BEEN SET TLED BY US EACH OF THE APPEAL IS SEPARATELY TAKEN UP FOR DISPO SAL. I.T.A. NO. 31/MDS/2010 8. THIS APPEAL OF THE REVENUE PERTAINS TO A PERIOD PRIOR TO THE DATE OF AMALGAMATION AND THE ONLY ISSUE RAISED ASSA ILS THE DIRECTION OF CIT(APPEALS) ALLOWING RELIEF TO THE ASSESSEE ON CONTRIBUTION OF ` 55 62 813/- MADE TO THE PENSION FUND AND PROVIDENT FUND. AS PER THE REVENUE THIS DIRECTION WAS GIVEN WITHOUT VERIF YING THE CORRECTNESS OF FIGURES INVOLVED. 9. DURING THE COURSE OF ASSESSMENT IT WAS NOTED BY THE A.O. THAT ASSESSEE HAD MADE A CONTRIBUTION TO PENSION FUND AN D PROVIDENT FUND ` 1 76 33 016/-. OUT OF THIS AS PER THE A.O. ` 1 74 68 183/- I.T.A. NOS. 31 TO 37/MDS/10 12 WAS CONTRIBUTION TO PENSION FUND AND ` 1 64 833/- WAS CONTRIBUTION TO PROVIDENT FUND. THE A.O. CAME TO A CONCLUSION T HAT CONTRIBUTION WAS NOT MADE TO ANY RECOGNIZED OR APPROVED FUNDS AN D THEREFORE MADE A DISALLOWANCE OF FULL AMOUNT OF ` 1 76 33 016/-. IN ITS APPEAL BEFORE CIT(APPEALS) ARGUMENT OF THE ASSESSEE WAS T HAT OUT OF THE AMOUNT ` 1 76 33 016/- ` 55 62 813/- WAS CONTRIBUTION MADE TO THE REGIONAL PROVIDENT FUND COMMISSIONER AND THIS BEING A RECOGNIZED PROVIDENT FUND THE DISALLOWANCE WAS NOT WARRANTED. LD. CIT(APPEALS) APPRECIATED THIS CONTENTION OF THE ASS ESSEE AND DELETED THE DISALLOWANCE TO THE EXTENT ` 55 62 813/-. 10. NOW BEFORE US LEARNED D.R. ASSAILING THE ORDE R OF LD. CIT(APPEALS) SUBMITTED THAT LD. CIT(APPEALS) HAD A LLOWED THE CLAIM OF THE ASSESSEE WITHOUT MAKING A PROPER VERIFICATIO N AND WITHOUT GIVING A CHANCE TO THE ASSESSING OFFICER TO VERIFY THE CLAIM OF THE ASSESSEE ESPECIALLY SINCE THE ASSESSING OFFICER H AD GIVEN A FINDING THAT THE CONTRIBUTION TO PROVIDENT FUND OUT OF THE TOTAL SUM OF ` 1 76 33 016/- CAME TO ` 1 64 833/- ONLY. 11. PER CONTRA LEARNED A.R. SUBMITTED THAT NO PURP OSE WOULD BE SERVED IF THE ISSUE IS REMITTED BACK TO THE ASSESSI NG OFFICER SINCE I.T.A. NOS. 31 TO 37/MDS/10 13 WHAT WAS ALLOWED BY THE CIT(APPEALS) WAS CONTRIBUTI ON MADE TO A RECOGNIZED PROVIDENT FUND. 12. WE HAVE PERUSED THE ORDERS AND HEARD THE RIVAL CONTENTIONS. THERE IS NO DISPUTE THAT A.O. IN THE ASSESSMENT ORD ER HAS MENTIONED ` 1 74 33 183/- AS CONTRIBUTION TOWARDS PENSION FUND AND ` 1 64 833/- AS CONTRIBUTION TOWARDS PROVIDENT FUND. AGAINST THIS CLAIM OF THE ASSESSEE BEFORE CIT(APPEALS) WAS THAT A SUM OF ` 55 62 813/- WAS CONTRIBUTED TO RECOGNIZED PROVIDENT FUND COMMISSIONER AND THIS WAS ACCEPTED. SINCE THE AMOU NT VARIES WE ARE OF THE OPINION THAT THE MATTER REQUIRES A RE-VI SIT BY THE ASSESSING OFFICER. NO DOUBT CONTRIBUTION TO REGIONAL PROVID ENT FUND COMMISSIONER BEING A RECOGNIZED ONE HAS TO BE ALLO WED BY THE ASSESSING OFFICER. NEVERTHELESS THE AMOUNT NEEDS VERIFICATION DUE TO VARIANCE AS MENTIONED ABOVE. HENCE WE SET ASID E THE ORDER OF LD. CIT(APPEALS) AND REMIT THE ISSUE BACK TO THE FILE O F THE A.O. FOR VERIFICATION OF THE CORRECT AMOUNT AND GIVING ALLOW ANCE THEREOF. 13. IN THE RESULT THE APPEAL FILED BY THE REVENUE FOR ASSESSMENT YEAR 2001-02 IS ALLOWED FOR STATISTICAL PURPOSES. I.T.A. NOS. 31 TO 37/MDS/10 14 I.T.A. NO. 32/MDS/2010 14. GROUNDS RAISED BY THE REVENUE IN THIS APPEAL FO R ASSESSMENT YEAR 2002-03 ARE REPRODUCED HEREUNDER:- (2) THE CIT(APPEALS) HAS ERRED ON THE FACTS AND CIRCUMSTANCES OF THE CASE IN DECIDING THAT THE APP OINTED DATE FOR AMALGAMATION OF COMPANIES IS 31/3/2001 WH EREAS AS PER THE DEFINITION GIVEN IN THE APPROVAL ORDER O F CENTRAL GOVERNMENT APPOINTED DATE MEANS THE DATE ON WHICH O RDER IS NOTIFIED IN THE OFFICIAL GAZETTE IE. 30/12/200 3. THEREFORE AMALGAMATION IS EFFECTIVE FROM ASST. YEAR 2004-05 AND NOT FROM ASST. YEAR 2001-02. (3) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE CIT(APPEALS) HAS ERRED IN ANNULLING THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER IN THIS CASE WITHOUT A REASONABLE CAUSE. (4) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE CIT(APPEALS) HAS ERRED IN DELETING THE ADDITIONS MA DE BY THE ASSESSING OFFICER ON ACCOUNT OF PENSION FUND PROVIDENT UND ( ` 4 67 04 630) NO FAULTY LIABILITY ( ` 6 08 75 424) AND PRIOR PERIOD EXPENSES ( ` 32 87 127) WITHOUT EXAMINING THESE ISSUES ON MERITS. 15. ASSESSEE HERE IS TNSTC (KUMBAKONAM DIVISIONI) LTD. THE COMPANY INTO WHICH THREE OTHER COMPANIES HAD AMALGA MATED AND ASSESSMENT YEAR INVOLVED IS 2002-03. IT HAD FILED RETURN FOR THE IMPUGNED ASSESSMENT YEAR DECLARING INCOME OF ` 3 51 50 327/-. AFTER SETTING OFF BROUGHT FORWARD LOSSES OF EARLIER YEARS THE TOTAL RETURNED LOSS CAME TO ` 17 06 01 268/-. AFTER CLAIMING BROUGHT I.T.A. NOS. 31 TO 37/MDS/10 15 FORWARD UNABSORBED DEPRECIATION THE NET LOSS DECLA RED TO BE CARRIED FORWARD CAME TO ` 77 99 84 426/-. INITIALLY THE ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) OF INCOME-TAX ACT 1 961 (IN SHORT THE ACT) BUT LATER REOPENED FOR VARIOUS REASONS INCLUDING NON CALCULATION OF BOOK-PROFIT UNDER SECTION 115JB OF T HE ACT. DURING THE COURSE OF RE-ASSESSMENT PROCEEDINGS ASSESSEE BROUG HT TO THE NOTICE OF A.O. THAT TNSTC (KUMBAKONAM DIVISION II) LTD. TNSTC (KUMBAKONAM DIVISION III) LTD. AND TNSTC (KUMBAKON AM DIVISION IV) LTD. HAD AMALGAMATED WITH ASSESSEE-COMPANY ON 31.3.2001 VIDE S.O. 1477(E) DATED 30.12.2003 AND THE RETURN F ILED BY THE ASSESSEE-COMPANY BEING PRIOR TO DATE OF S.O. 1477(E ) INCLUDED ONLY THE TRANSACTION OF THE AMALGAMATED COMPANY WITHOUT CONSIDERING THE SCHEME OF AMALGAMATION AND TRANSACTIONS OF THE AMAL GAMATING COMPANIES. HENCE PRAYER OF THE ASSESSEE WAS THAT THERE COULD NOT BE VALID ASSESSMENT DONE ON AN INCOME DECLARED ON T HE BASIS OF PART TRANSACTIONS. BUT THE A.O. WAS NOT APPRECIATIVE O F THIS CONTENTION. ACCORDING TO HIM THE AMALGAMATION COULD BE DEEMED TO HAVE COME INTO EFFECT ONLY FROM ASSESSMENT YEAR 2004-05 AND T HEREFORE ASSESSMENT COULD BE MADE BASED ON THE RETURN FILED BY THE ASSESSEE FOR THE IMPUGNED ASSESSMENT YEAR. CERTAIN ADDITION S WERE MADE AND ASSESSMENT WAS COMPLETED. I.T.A. NOS. 31 TO 37/MDS/10 16 16. ASSESSEE MOVED IN APPEAL BEFORE CIT(APPEALS) AN D ITS ARGUMENT WAS THAT BY VIRTUE OF THE DECISION OF HON' BLE APEX COURT IN THE CASE OF MARSHALL SONS AND CO. (INDIA) LTD. (SUP RA) THE AMALGAMATION HAD COME INTO EFFECT ON 31.3.2001 AND THEREFORE THERE COULD NOT BE ANY SEPARATE ASSESSMENT BASED ON ACCOU NTS OF THE AMALGAMATED COMPANY WITHOUT CONSIDERING THE ACCOUNT S OF THE AMALGAMATING COMPANIES. LD. CIT(APPEALS) WAS APPRE CIATIVE OF THIS CONTENTION. ACCORDING TO HIM THE ASSESSMENT DONE WAS NULL AND VOID SINCE ASSESSEE CEASED TO EXIST ON 31.3.2001. BUT NEVERTHELESS HE GAVE FREEDOM TO A.O. TO FRAME A FRESH ASSESSMENT ON THE AMALGAMATED COMPANY FOR THE IMPUGNED ASSESSMENT YEA R AFTER CONSOLIDATING THE ACCOUNTS OF ALL THE FOUR COMPANIE S INCLUDING THAT OF THE AMALGAMATING COMPANIES. 17. NOW BEFORE US LEARNED D.R. SUBMITTED THAT ASSE SSEE HERE WAS THE AMALGAMATED COMPANY AND NOT THE AMALGAMATING CO MPANIES AND HENCE ACCORDING TO HIM ASSESSMENT DONE ON SUC H COMPANY CANNOT BE HELD AS VOID. 18. PER CONTRA LEARNED A.R. SUPPORTED THE ORDER OF LD. CIT(APPEALS). I.T.A. NOS. 31 TO 37/MDS/10 17 19. WE HAVE PERUSED THE ORDERS AND HEARD THE RIVAL CONTENTIONS. AS ALREADY MENTIONED ASSESSEE HERE IS TAMIL NADU S TATE TRANSPORT CORPORATION (KUMBAKONAM DIVISION I) LTD. AS PER S .O. 1477(E) DATED 30 TH DECEMBER 2003 TAMIL NADU STATE TRANSPORT CORPORA TION (KUMBAKONAM DIVISION I) LTD. IS THE COMPANY INTO W HICH THE OTHER THREE COMPANIES WERE TO BE AMALGAMATED. IN OTHER W ORDS THERE IS NO QUESTION OF TAMIL NADU STATE TRANSPORT CORPORATI ON (KUMBAKONAM DIVISION I) LTD. HAVING BECOME EXTINCT OR HAVING BECOME DISSOLVED AT ANY POINT OF TIME. THIS COMPAN Y WAS ALWAYS IN EXISTENCE AND CONTINUING. THE OTHER COMPANIES NAM ELY TAMIL NADU STATE TRANSPORT CORPORATION (KUMBAKONAM DIVISION I I) LTD. TAMIL NADU STATE TRANSPORT CORPORATION (KUMBAKONAM DIVISI ON III) LTD. AND TAMIL NADU STATE TRANSPORT CORPORATION (KUMBAKO NAM DIVISION IV) LTD. HAD AMALGAMATED INTO THE ASSESSEE-COMPANY . HENCE WE CANNOT HOLD THAT THE ASSESSING OFFICER HAD NO AUTHO RITY TO MAKE ASSESSMENT ON THE ASSESSEE-COMPANY BASED ON THE RET URN FILED BY IT. NEVERTHELESS IT IS ALSO TRUE THAT THE AMALGAMATION HAVING COME INTO EFFECT ON 30.12.2001 RETURN FILED BY THE ASSESSEE- COMPANY EXCLUDING TRANSACTIONS RELATING TO THE AMALGAMATING COMPANIES WAS NOT TRUE AND CORRECT AND DID NOT REFLECT THE CORREC T STATE OF AFFAIRS OR I.T.A. NOS. 31 TO 37/MDS/10 18 INCOME. BUT ASSESSEE COULD NOT BE FAULTED WITH FO R SUCH AN ACTION SINCE THE NOTIFICATION APPROVING THE AMALGAMATION H AD COME IN THE GAZETTE AFTER FILING THE RETURN OF INCOME. IN OUR OPINION IN SUCH A SCENARIO WHAT IS REQUIRED IS TO SET ASIDE THE ORDE R OF THE A.O. FOR THE IMPUGNED ASSESSMENT FOR MAKING A FRESH ASSESSMENT OF THE ASSESSEE INCLUDING THE TRANSACTIONS OF THE AMALGAMA TING COMPANIES ALSO. AS ALREADY MENTIONED AT PARA 16 ABOVE ASSES SING OFFICER IS FREE TO EVEN TO MAKE BEST OF JUDGEMENT IN SUCH A SC ENARIO WHERE THE ASSESSEE IS NOT GIVING ALL THE INFORMATION RELATING TO THE AMALGAMATED POSITION. IN OUR OPINION LD. CIT(APPEALS) FELL IN ERROR IN DECIDING THAT ASSESSMENT ITSELF WAS NULL AND VOID. WE THEREFOR E SET ASIDE THE ORDER OF LD. CIT(APPEALS) AS WELL AS A.O. AND REMIT THE ISSUE BACK TO THE FILE OF THE A.O. FOR DE NOVO CONSIDERATION AFT ER TAKING INTO ACCOUNT THE AMALGAMATED POSITION VIZ. ALL THE TRANSACTIONS RELATING TO AMALGAMATING COMPANIES AS WELL AS THE ASSESSEE-COMP ANY. ASSESSEE SHALL CO-OPERATE WITH THE A.O. AND GIVE AL L NECESSARY RECORDS REQUIRED FOR THE PURPOSE. SINCE THE MATTER IS SET ASIDE FOR DE NOVO CONSIDERATION ASSESSING OFFICER WILL ALSO EXA MINE VARIOUS ADDITIONS MADE BY HIM IN THE ORIGINAL ASSESSMENT AF TER CONSIDERING THE HIGHER APPELLATE DECISIONS IF ANY ON SUCH ISS UES. ASSESSEE SHALL I.T.A. NOS. 31 TO 37/MDS/10 19 ALSO BE FREE TO BRING TO THE NOTICE OF THE ASSESSIN G OFFICER ALL RELATED FACTS PERTAINING TO SUCH ADDITIONS AND DISALLOWANCE S. 20. IN THE RESULT APPEAL OF THE REVENUE FOR ASSESS MENT YEAR 2002- 03 IS ALLOWED FOR STATISTICAL PURPOSES. I.T.A. NO. 33/MDS/2010 21. THE ASSESSEE INVOLVED IN THIS APPEAL IS ONE OF THE AMALGAMATING COMPANIES. LD. CIT(APPEALS) TOOK A VI EW THAT AMALGAMATION HAVING TAKEN EFFECT ON 31.3.2001 NO A SSESSMENT COULD HAVE BEEN FRAMED ON THE ASSESSEE FOR IMPUGNED ASSESSMENT YEAR. FOR REASONS CITED BY US AT PARA 6 ABOVE WE ARE OF THE OPINION THAT LD. CIT(APPEALS) IS JUSTIFIED IN TAKING THIS V IEW. IT IS TO BE NOTED THAT THE CIT(APPEALS) HAD GIVEN FREEDOM TO THE ASSE SSING OFFICER TO DECIDE ON MERITS OF THE CASE WHEN HE WAS CONSIDERIN G THE ASSESSMENT OF AMALGAMATED COMPANY FOR THE IMPUGNED ASSESSMENT YEAR. WE THEREFORE FIND NO REASON TO INTERFERE W ITH THE ORDER OF LD. CIT(APPEALS). 22. IN THE RESULT APPEAL OF THE REVENUE IS DISMISS ED. I.T.A. NOS. 31 TO 37/MDS/10 20 I.T.A. NO. 34/MDS/2010 23. ASSESSEE HERE IS THE AMALGAMATED COMPANY NAMEL Y TAMIL NADU STATE TRANSPORT CORPORATION (KUMBAKONAM DIVISI ON I) LTD. AND ASSESSMENT YEAR INVOLVED IS 2003-04. ASSESSEE HAD FILED A REVISED RETURN FOR THE IMPUGNED ASSESSMENT YEAR IN CLUDING THE INCOME/LOSS OF AMALGAMATING COMPANIES TAMIL NADU S TATE TRANSPORT CORPORATION (KUMBAKONAM DIVISION II) LTD . TAMIL NADU STATE TRANSPORT CORPORATION (KUMBAKONAM DIVISION I II) LTD. AND TAMIL NADU STATE TRANSPORT CORPORATION (KUMBAKONAM DIVISION IV) LTD. IN THE ORIGINAL RETURN FILED BY THE ASSESSEE ON 20.11.2003 THE EFFECT OF THE AMALGAMATION WAS NOT GIVEN SINCE THE NOTIFICATION OF SCHEME OF AMALGAMATION CAME ONLY ON 30.12.2003. HO WEVER IN THE REVISED RETURN FILED ON 27.3.2006 ASSESSEE CONSIDE RED THE CONSOLIDATED POSITION INCLUDING THE TRANSACTIONS RE LATING TO AMALGAMATING COMPANIES. IN SUCH RETURN OF INCOME ASSESSEE ALSO CLAIMED SET OFF OF LOSSES BROUGHT FORWARD FROM THE THREE AMALGAMATING COMPANIES AS ALSO ITS OWN. THE RESUL T WAS THAT THE NET INCOME SHOWN IN THE REVISED RETURN AS NIL. H OWEVER SUBSTANTIAL AMOUNT OF CARRIED FORWARD OF LOSSES AND UNABSORBED DEPRECIATION WERE CLAIMED. REVISED RETURN HAVING BEEN FILED LAT E A.O. WAS NOT INCLINED TO ALLOW THE CLAIM OF CARRY FORWARD. THE A.O. ALSO FOUND I.T.A. NOS. 31 TO 37/MDS/10 21 THAT EVEN OTHERWISE ASSESSEE COULD NOT CLAIM SUCH CARRY FORWARD OF LOSSES AND UNABSORBED DEPRECIATION BELONGING TO AMA LGAMATING COMPANIES SINCE ASSESSEE WAS NOT AN INDUSTRIAL COMP ANY. ASSESSEE WAS PUT ON NOTICE IN THIS REGARD WHEREUPON ITS REP LY WAS IT WAS AN INDUSTRIAL COMPANY AND IT HAD DONE BUS-BODY CONSTRU CTION RECONDITIONING AND ASSEMBLY OF VEHICLES ETC. HOWE VER THE A.O. WAS OF THE OPINION THAT DATE OF AMALGAMATION COULD BE C ONSIDERED AS 30.12.2003 AND THUS EFFECTIVE FROM ASSESSMENT YEAR 2004-05. THEREFORE ACCORDING TO HIM FOR THE IMPUGNED ASSES SMENT YEAR THERE COULD NOT BE ANY ASSESSMENT ON CONSOLIDATED R ESULTS INCLUDING THAT OF AMALGAMATING COMPANIES. FURTHER AS PER TH E A.O. THE CLAIM OF BROUGHT FORWARD LOSSES AND UNABSORBED DEPRECIATI ON OF AMALGAMATING COMPANIES COULD NOT BE ALLOWED SINCE A SSESSEE WAS NOT AN INDUSTRIAL UNDERTAKING. AS PER THE A.O. AS SESSEE WAS NOT MAINLY ENGAGED IN ANY INDUSTRIAL ACTIVITY. NEVERTH ELESS THE A.O. DID AN ASSESSMENT ON PROTECTIVE BASIS ON THE ASSESSEE SINCE HE HAD APPREHENSION THAT ASSESSMENT DONE ON THE ASSESSEE B ASED ON ITS ORIGINAL RETURN MIGHT NOT BE ACCEPTED BY THE APPELL ATE AUTHORITIES. HOWEVER IN SUCH PROTECTIVE ASSESSMENT CLAIM FOR S ET OFF OF BROUGHT FORWARD LOSS AND UNABSORBED DEPRECIATION WAS NOT AL LOWED. I.T.A. NOS. 31 TO 37/MDS/10 22 24. IN ITS APPEAL BEFORE LD. CIT(APPEALS) ASSESSEE ASSAILED THE NON-CONSIDERATION OF BROUGHT FORWARD LOSSES AND UNA BSORBED DEPRECIATION AS ALSO NON-CONSIDERATION OF THE RESU LTS OF AMALGAMATING COMPANIES. LD. CIT(APPEALS) HELD THAT THE ASSESSMENT ON THE ASSESSEE WAS CORRECTLY DONE SINC E ASSESSEE WAS THE COMPANY TO WHICH AMALGAMATING COMPANIES HAD AMALGAMATED AND WAS ALWAYS IN EXISTENCE. THE CIT(A PPEALS) ALSO DID NOT ACCEPT THE CLAIM OF THE ASSESSEE FOR CARRY FORWARD AND SET OFF OF LOSSES AND UNABSORBED DEPRECIATION. 25. NOW BEFORE US THE ONLY GRIEVANCE OF THE REVENU E IS THAT LD. CIT(APPEALS) HELD IN HIS ORDER THAT EFFECTIVE DATE OF AMALGAMATION WAS 31.3.2001 AND NOT AS 30.12.2003. 26. WE HAVE ALREADY HELD AT PARA SIX ABOVE THAT TH E SCHEME OF AMALGAMATION WOULD RELATE BACK TO 31.3.2001. THERE FORE THIS GRIEVANCE OF THE REVENUE DOES NOT HOLD ANY MERIT. FURTHER APPEAL OF THE ASSESSEE HAVING BEEN DISMISSED BY THE CIT(APPEA LS) WE ARE OF THE OPINION THAT THE APPEAL FILED BEFORE US BY THE REVENUE ITSELF IS MISCONCEIVED. I.T.A. NOS. 31 TO 37/MDS/10 23 27. IN THE RESULT THE APPEAL FILED BY THE REVENUE FOR ASSESSMENT YEAR 2003-04 IS DISMISSED. I.T.A. NO. 35/MDS/2010 28. ASSESSEE INVOLVED IN THIS APPEAL IS TAMIL NADU STATE TRANSPORT CORPORATION (KUMBAKONAM DIVISION I) LTD. TO WHICH THREE OF THE OTHER COMPANIES HAD AMALGAMATED. THE APPEAL NOW FI LED EMANATES FROM THE ORIGINAL ASSESSMENT DONE BY THE A.O. FOR T HE IMPUGNED ASSESSMENT YEAR. ASSESSEE HAD ORIGINALLY RETURNED ITS INCOME WITHOUT CONSIDERING THE TRANSACTIONS RELATING TO TH E AMALGAMATING COMPANIES OR IN OTHER WORDS WITHOUT CONSIDERING TH E ACCOUNTS OF THE AMALGAMATING COMPANIES SINCE AS ON THE DATE IT FIL ED THE ORIGINAL RETURN THE NOTIFICATION REGARDING THE SCHEME OF AM ALGAMATION HAD NOT YET COME. SUCH RETURN FILED WAS INITIALLY PROC ESSED UNDER SECTION 143(1) OF THE ACT. BUT LATER IT WAS REOPENED FOR A REASON THAT THERE WAS ESCAPEMENT OF INCOME. IN REPLY TO REOPENING NO TICE ASSESSEE SUBMITTED THAT IT HAD LATER FILED REVISED RETURN FO R THE IMPUGNED ASSESSMENT YEAR INCLUDING THEREIN THE TRANSACTIONS RELATING TO AMALGAMATING COMPANIES AS WELL SINCE DURING THE IN TERREGNUM IT HAD RECEIVED NOTIFICATION ACCEPTING THE SCHEME OF A MALGAMATION. NEVERTHELESS THE A.O. WAS OF THE OPINION THAT THE DATE OF I.T.A. NOS. 31 TO 37/MDS/10 24 AMALGAMATION COULD ONLY BE CONSIDERED AS DATE OF NO TIFICATION AND PROCEEDED WITH ASSESSMENT MAKING CERTAIN ADDITIONS / DISALLOWANCES. 29. ASSESSEE IN ITS APPEAL BEFORE LD. CIT(APPEALS) SUBMITTED THAT DATE OF AMALGAMATION SHOULD BE CONSIDERED ONLY AS 3 1.3.2001 AND NOT THE DATE OF NOTIFICATION AND THEREFORE THE ASS ESSMENT DONE ON THE ASSESSEE-COMPANY BASED ON THE ORIGINAL RETURN WHER EIN ONLY TRANSACTION RELATING TO TAMIL NADU STATE TRANSPORT CORPORATION (KUMBAKONAM DIVISION I) LTD. WAS REFLECTED WAS BA D IN LAW ESPECIALLY SINCE IT HAD FILED A REVISED RETURN CONS OLIDATING ALL THE FOUR COMPANIES ACCOUNTS. LD. CIT(APPEALS) AFTER VERIFYI NG THE SUBMISSION OF THE ASSESSEE WAS OF THE VIEW THAT ASSESSMENT DO NE ON THE ASSESSEE-COMPANY CONSIDERING THE TRANSACTION RELATI NG TO TAMIL NADU STATE TRANSPORT CORPORATION (KUMBAKONAM DIVISI ON I) LTD. ALONE WAS WRONG AND INCOMPLETE AND ASSESSING OFFICE R OUGHT HAVE TAKEN THE RESULTS OF THE AMALGAMATED COMPANY IN A C ONSOLIDATED MANNER AFTER CONSIDERING ALL THE AMALGAMATING COMPA NIES. THOUGH HE HELD ASSESSMENT TO BE NULL AND VOID HE GAVE FRE EDOM TO THE ASSESSING OFFICER TO PROCEED WITH ASSESSMENT AFTER CONSIDERING THE CONSOLIDATED ACCOUNTS OF THE AMALGAMATED COMPANY IN CLUDING THAT OF AMALGAMATING COMPANIES. I.T.A. NOS. 31 TO 37/MDS/10 25 30. NOW BEFORE US GRIEVANCE OF THE REVENUE IS THAT THE DATE OF AMALGAMATION OUGHT HAVE BEEN CONSIDERED AS 31.3.200 1 AND NOT 30.12.2003. AS PER THE REVENUE LD. CIT(APPEALS) H AD ERRED IN DELETING THE ADDITIONS MADE BY THE A.O. 31. WE HAVE PERUSED THE ORDERS AND HEARD THE RIVAL CONTENTIONS. WE HAVE ALREADY HELD AT PARA 6 ABOVE THAT DATE OF AMALGAMATION HAS TO BE CONSIDERED AS 31.3.2001 AND THEREAFTER TH ERE CAN BE NO ASSESSMENT SEPARATELY DONE ON THE AMALGAMATING COMP ANIES. AT THE SAME TIME WE FIND THAT ASSESSEE HERE IS TAMIL N ADU STATE TRANSPORT CORPORATION (KUMBAKONAM DIVISION I) LTD. WHICH IS THE COMPANY INTO WHICH OTHER THREE COMPANIES AMALGAMATE D OR IN OTHER WORDS ASSESSEE-COMPANY WAS ALWAYS CONTINUED TO EXI ST. NEVERTHELESS THE ASSESSEE-COMPANY IN ITS ORIGINAL RETURN DID NOT INCLUDE THE RESULTS OF AMALGAMATING COMPANIES SINCE NOTIFICATION WAS NOT AVAILABLE TO IT WHEN IT FILED SUCH RETURN. HOW EVER IT HAD FILED A REVISED RETURN INCLUDING THE RESULTS OF THE AMALGAM ATING COMPANIES AND SEPARATE ASSESSMENT WAS MADE BY THE ASSESSING O FFICER BASED ON SUCH REVISED RETURN. APPEAL RELATING TO SUCH AS SESSMENT HAS BEEN DISPOSED OF BY US IN I.T.A. NO.34/MDS/2010 VID E PARA 26 ABOVE. SINCE THE ASSESSING OFFICER HAS BEEN GIVEN FREEDOM BY LD. I.T.A. NOS. 31 TO 37/MDS/10 26 CIT(APPEALS) TO CONSIDER ALL ALLOWANCES AND ADDITIO NS AT THE TIME OF ASSESSMENT CONSIDERING THE RESULTS OF ALL THE FOUR CONSOLIDATED COMPANIES TOGETHER WE DO NOT FIND ANY INFIRMITY IN THE DIRECTION GIVEN BY THE CIT(APPEALS). WE THUS FIND NO MERIT IN THE APPEAL FILED BY THE REVENUE. 32. IN THE RESULT THE APPEAL FILED BY THE REVENUE FOR ASSESSMENT YEAR 2003-04 STANDS DISMISSED. I.T.A. NO. 36/MDS/2010 33. THE SOLE ISSUE RAISED BY THE REVENUE IN THIS AP PEAL FOR ASSESSMENT YEAR 2004-05 IS THAT LD. CIT(APPEALS) CO NSIDERED THE APPOINTED DATE OF AMALGAMATION OF COMPANIES AS 31.3 .2001 AGAINST 30.12.2003 CONSIDERED BY THE A.O. 34. WE HAVE ALREADY CONSIDERED THIS ISSUE AND HELD IN FAVOUR OF ASSESSEE AT PARA SIX ABOVE OF THIS ORDER. HENCE F OR THE SAME REASONS AS MENTIONED THEREIN WE FIND NO MERIT IN T HIS APPEAL OF THE REVENUE. 35. IN THE RESULT THE APPEAL FILED BY THE REVENUE FOR ASSESSMENT YEAR 2004-05 STANDS DISMISSED. I.T.A. NOS. 31 TO 37/MDS/10 27 I.T.A. NO. 37/MDS/2010 36. SIMILAR GROUND AS TAKEN IN I.T.A. NO. 36/MDS/20 10 FOR ASSESSMENT YEAR 2004-05 HAS BEEN TAKEN BY THE REVE NUE HERE ALSO. 37. FOR THE REASON MENTIONED BY US AT PARA SIX ABOV E WE DISMISS THIS APPEAL OF THE REVENUE. 38. TO SUMMARISE THE RESULTS REVENUES APPEAL FOR ASSESSMENT YEARS 2001-02 & 2002-03 ARE ALLOWED FOR STATISTICAL PURPOSES AND THOSE FOR ASSESSMENT YEARS 2002-03 2003-04 AND 200 4-05 ARE DISMISSED. THE ORDER WAS PRONOUNCED IN THE COURT ON 30 TH SEPTEMBER 2011. SD/- SD/- (HARI OM MARATHA) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI DATED THE 30 TH SEPTEMBER 2011. KRI. COPY TO: (1) APPELLANTS (2) RESPONDENT (3) CIT(A) TIRUCHIRAPALLI (4) CIT-II TRICHY (5) D.R. (6) GUARD FILE