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Income Tax Appellate Tribunal, “SMC” BENCH KOLKATA
Before: SHRI MANISH BORAD & SHRI SONJOY SARMA
Present for: Appellant by : Shri Abhishek Bansal, AR Respondent by : Shri Subhro Das, Addl. CIT Date of conclusion of Hearing : 22.04.2024 Date of Pronouncement : 22.04.2024 O R D E R PER SONJOY SARMA, JUDICIAL MEMBER: Both these appeals have been preferred by the assessee against the separate orders of the Ld. Commissioner of Income-tax, Appeals, National Faceless Appeal Centre (NFAC), Delhi [hereinafter referred to as ‘the CIT(A)’], both dated 30.07.2023 passed u/s. 250 of the Income- tax Act, 1961 hereinafter referred to as ‘the Act’ passed against the intimation u/s. 154 r.w.s. 143(1) of the Act for the AYs 2021-22 and 2022-23 respectively. Since grounds are common and facts are identical, we dispose of both the appeals by this consolidated order for the sake of brevity by taking the as the lead case and result of which would be applied mutatis mutandi in respect of the other appeal.
2 & 859/Kol/2023 Pushpanjali Medi India Pvt. Ltd. AYs 2021-2 & 2022-23 2. The only issue raised by the assessee in the various grounds of appeal is against the order of Ld. CIT(A) upholding the order of the Assessing Officer (in short ld. 'AO') wherein Ld. AO has denied and declined the grant of credit of TDS amounting to Rs. 6,12,488/- to the amalgamated company, as the transferor company amalgamated with the assessee in the amalgamation scheme sanctioned by the Ld. NCLT, Kolkata Bench.
The facts in brief are that the scheme of amalgamation between M/s. S. M. Mercantile Pvt. Ltd. with the assessee company i.e. Pushpanjali Medi India Pvt. Ltd. was approved on 21.01.2022 w.e.f. the appointed date i.e. 01.04.2020 u/s 232 of the Companies Act, 2013. In view of the above amalgamation, the assessee company pursuant to Clause 7 of Part VIII of the Scheme, wherein it was clearly stated that all taxes including TDS as well as including all or any refunds, credits and claims, incentives or other benefits belonging to the transferor companies from the appointed date onwards, be treated as the credits, claims and tax benefits of the transferee company and accordingly the assessee claimed the credit of TDS to the tune of Rs. 6,12,488/- in its return of income filed for the relevant assessment year which originally belonged to the merged entities namely M/s. S. M. Mercantile Pvt. Ltd. prior to amalgamation with effect from 01.04.2020. Return of income was filed on 18.10.2022 wherein the above said TDS credit was claimed. However, while processing the return u/s 143(1) of the Act, Ld. AO, CPC denied the above said claim of TDS credit in processing the return as well as rectification order dated 26.10.2022. Aggrieved by the said order of Ld. AO, CPC, assessee has challenged the same before the Ld. CIT(A) while Ld. CIT(A) upheld the order of Ld. AO by simply dismissing the appeal of the assessee.
3 & 859/Kol/2023 Pushpanjali Medi India Pvt. Ltd. AYs 2021-2 & 2022-23 4. After hearing rival contentions and perusing the material on record, we note that the scheme of amalgamation dated 21.01.2022 between the above stated companies and the assessee was approved by the Ld. NCLT with effect from the appointed date i.e. 01.04.2020 vide order dated 21.01.2022. We note that as per Clause 7 of Part VIII of the Scheme, all taxes including TDS as well as refunds, credits, claims, incentives or other benefits belonging to the transferor companies from the appointed date shall be treated as belonging to the transferee company. Accordingly, the assessee claimed TDS of Rs. 6,12,488/- in the return of income which originally belonged to the amalgamating entities namely, M/s. S. M. Mercantile Pvt. Ltd. prior to the date of amalgamation with effect from 01.04.2020. We have perused the Scheme of amalgamation approved by the Ld. NCLT and note that the appointed dated is 01.04.2020. In our opinion, the said claim of the assessee is genuine as per the provisions of the Act and is squarely covered by the decision of the Hon'ble Supreme Court in the case of Marshall Sons & Co. (India) Ltd. Vs. ITO reported in 223 ITR 809 wherein the Hon'ble Apex Court has held that every scheme of amalgamation has to necessarily provide a date with effect from which the amalgamation/transfer shall take place and it is true that while sanctioning the scheme, it is open to the Court to modify the said date and prescribe such date of amalgamation/transfer as it thinks appropriate in the facts and circumstances of the case. However, if the Court so specifies a date, there is little doubt that such date would be the date of amalgamation/date of transfer. But, where the Court does not prescribe any specific date but merely sanctions the scheme presented to it, it should follow that the date of amalgamation/date of transfer is the date specified in the scheme as the transfer date and it cannot be otherwise.
4 & 859/Kol/2023 Pushpanjali Medi India Pvt. Ltd. AYs 2021-2 & 2022-23 5. We have after examining the facts of case and material available on record find that TDS is deducted in the name of transferor companies but that is immaterial when the scheme is approved by the Ld. NCLT as post the appointed date, the TDS deducted in the hands of the transferor company shall belong to the transferee company.
We, therefore, are not in concurrence with the conclusion drawn by Ld. CIT(A) that only assets of the amalgamated companies of the transferor companies were transferred and not the TDS. Consequently, we set aside the order of Ld. CIT(A) order and direct Ld. AO to allow the credit of Rs. 6,12,488/- to the assessee.