“demerger”
The decision most relied on for demerger is CIT v. Sonata Software Ltd. (21 Taxmann.com 23), cited in 54 judgments on BharatTax.
Leading authorities on demerger
The case clarifies the negative conditions for Section 10A exemption, requiring an industrial undertaking not be formed by splitting up an existing business or using previously used machinery. It also establishes that tax benefits under provisions like Section 80J and 80IA attach to the undertaking itself, allowing successor entities to claim the unexpired benefit period.
An assessment order passed against a transferor company that has ceased to exist due to amalgamation or demerger is non est in the eyes of law and void, as this constitutes a jurisdictional error not curable under Section 292B of the Income-tax Act.
A scheme of amalgamation or demerger approved by the High Court, having considered public interest, cannot be disturbed by the revenue authorities solely on the ground that the assessee is not entitled to certain benefits like those under Section 72A of the Income Tax Act.
The eligibility for deductions under sections 80-IB and 80-IA, and related issues like the initial assessment year, demerger, and resulting company status, are significant considerations in the context of company restructuring and tax benefits.
An amalgamation that has been brought to the notice of the Assessing Officer is void ab initio, meaning it is invalid from the beginning.
Once a scheme of arrangement or amalgamation has been sanctioned by a competent court and due notice has been issued to the income tax department, the binding nature of the scheme cannot be challenged during its implementation, as it attains statutory force.
Unabsorbed depreciation of an amalgamating company cannot be added to the written down value of assets in the hands of the amalgamated company. The Supreme Court has dismissed a special leave petition against a High Court decision on this point, implicitly upholding this proposition.
Succession to business requires the successor to take over the whole or substantially the whole of the predecessor's business and continue it. A successor to only a part of the business, resulting from disintegration, is not considered a successor to the original business.
