ITAT Grants TDS Credit on Merged Entity’s Income to Amalgamated Company

Shiva Pharmachem Limited Vs DCIT (ITAT Ahmedabad)

In a recent decision, the Income Tax Appellate Tribunal (ITAT) in Ahmedabad addressed the issue of TDS credit eligibility for Shiva Pharmachem Limited. The tribunal ruled that the Assessing Officer (AO) should allow TDS credit to the company, even if the tax deduction certificates were issued in the name of its amalgamated company, provided that the related income is reflected in Shiva Pharmachem’s assessment.

Background of the Case

The appeal filed by Shiva Pharmachem Limited challenged the decision of the Commissioner of Income Tax (Appeals) – National Faceless Appeal Centre (NFAC) dated July 24, 2023, concerning the denial of TDS credit by the Centralized Processing Centre (CPC), Bengaluru. The CPC had issued a rectification order under Section 154 of the Income Tax Act, 1961, on December 19, 2022, refusing TDS credit totaling Rs. 10,09,254 for the assessment year 2021-22.

The dispute originated from an arrangement involving Shiva Pharmachem and Tash Investment Pvt. Ltd., approved by the National Company Law Tribunal (NCLT) on September 10, 2020. Under this scheme, Tash Investment Pvt. Ltd. was amalgamated with Shiva Pharmachem, effective April 1, 2019. Consequently, all income generated by Tash Investment Pvt. Ltd. before the effective date was transferred to Shiva Pharmachem’s books and reported in its returns.

Key Issues Raised

Shiva Pharmachem argued that since the income from Tash Investment Pvt. Ltd. was included in its tax filings, it should be eligible to claim TDS credit related to this income, regardless of the TDS certificate being in the amalgamated company’s name. The CPC, however, denied this credit, citing procedural issues under Rule 37BA of the Income Tax Rules, which pertains to TDS credit in cases of transfer or succession.

In its appeal, Shiva Pharmachem highlighted:

• The company had rightfully included Tash Investment Pvt. Ltd.’s income of Rs. 99,22,532 in its returns for FY 2019-20, applicable to AY 2020-21, and claimed the TDS of Rs. 9,92,253 in AY 2021-22.
• An additional income of Rs. 2,00,000, also from Tash Investment Pvt. Ltd., was declared in FY 2020-21 (AY 2021-22) with TDS of Rs. 17,000.

Legal Arguments and Reference to Past Judgments

The counsel for Shiva Pharmachem argued that the CPC’s refusal to grant TDS credit was inconsistent with the ITAT’s previous rulings in similar cases, where amalgamated entities were permitted to claim TDS credits for income assessed in their hands. Notably, the counsel referred to:

• CES Limited vs Dy. Commissioner of Income Tax (ITAT Hyderabad) – The tribunal held that TDS credit should be granted to the resulting company if the income is assessed in the hands of the amalgamated entity.
• Culver Max Entertainment Pvt. Ltd. vs Asst. Commissioner of Income Tax – Here, the ITAT directed the AO to permit TDS credits even though certificates were issued in the name of the amalgamated company, provided the income was included in the successor’s tax assessment.
• Popular Complex Advisory P Ltd vs ITO, Adani Gas Ltd vs ACIT, Ultratech Cement Ltd vs DCIT – Similar cases where ITAT ruled in favor of the successor entity for TDS credit eligibility.

Based on these precedents, the counsel contended that the assessee, Shiva Pharmachem, should be entitled to claim TDS credits related to Tash Investment Pvt. Ltd.’s income.

Tribunal’s Observations and Decision

The ITAT reviewed the arguments and the cited judgments, concluding that when income from an amalgamated entity is included in the successor’s assessment, the TDS credit for that income should also be transferrable. It emphasized that procedural requirements under Rule 37BA should not override substantive rights to TDS credits, especially when income has already been subjected to tax.

The tribunal noted the following points:

1. The NCLT-approved merger made Shiva Pharmachem the legal successor of Tash Investment Pvt. Ltd. from April 1, 2019.
2. Income generated by Tash Investment Pvt. Ltd. before the merger was transferred to and assessed in the hands of Shiva Pharmachem.
3. Since this income was assessed under the successor company, TDS credits should logically follow to avoid unjust tax burdens on the amalgamated entity.

Consequently, the ITAT set aside the NFAC’s order and directed the AO to grant Shiva Pharmachem the TDS credit of Rs. 10,09,254, pending verification of the income assessment in the successor’s tax return.

Implications of the Ruling

This ITAT ruling underscores the tribunal’s approach to amalgamation-related tax disputes, favoring a substantive view over rigid procedural adherence. By allowing TDS credits for an amalgamated entity’s income, the ITAT acknowledges the economic reality of mergers and ensures tax fairness for successor companies. The decision aligns with prior ITAT judgments that support the transfer of TDS benefits alongside income in merger cases.

Conclusion

The ITAT Ahmedabad’s ruling in the case of Shiva Pharmachem Limited vs DCIT reinforces the eligibility of successor entities to claim TDS credits for income assessed in their hands, even if the original TDS certificates are issued in the amalgamated company’s name. This decision contributes to the evolving jurisprudence on TDS credits in corporate restructuring, providing guidance for companies undergoing similar arrangements.

The appeal filed by Shiva Pharmachem Limited was thus allowed, with the AO instructed to verify and permit the TDS credit. This ruling is expected to impact similar cases where amalgamated companies seek TDS credits for income previously earned by merged entities.

FULL TEXT OF THE ORDER OF ITAT AHMEDABAD

This appeal by Assessee is filed against the order of Commissioner of Income Tax (Appeals) – National Faceless Appeal Centre – Delhi [hereinafter referred to as “the Ld.CIT(A)”] passed on 24/07/2023 u/s. 250 of the Income Tax Act,1961 (hereinafter referred to as “the Act”) instituted against the order dated 19/12/2022 passed by the Assistant Director of Income Tax, CPC, under section 154 of the Income-tax Act, 1961, for the Assessment Year (AY) 2021-22.

Facts of the Case:

2. The assessee, M/s. Shiva Pharmachem Limited, filed its original return on 09/02/2022 declaring a total income of Rs.64,88,10,170/-. The assessee entered into a scheme of arrangement under sections 230 to 232 of the Companies Act, 2013, with M/s. Tash Investment Pvt. Ltd., as approved by the NCLT order dated 10th September 2020. The effective date of this scheme was 01st April-2019.

2.1. Since, the order of NCLT was issued on 10th September-2020, the operation of amalgamated and merged company i.e. of M/s. Tash Investment Private Limited continued till the date of such order and accordingly income was aroused till the date of such order. The TDS credit was also generated for the above-mentioned income till the date of order of NCLT.

2.2. Due to the effect of NCLT order, the company, M/s. Tash Investment Private Limited was amalgamated and merged with the assessee company M/s. Shiva Pharmachem Limited with effect from 01/04/2019, the income till the date of order was transferred in the books of the assessee-company and was also offered for tax while filling return of income for the respective years. Accordingly, TDS credit relating to such income has been claimed while filing Income tax return for the A. Y. 2021-22.

2.3. The assessee-company booked and offered for tax an income of Rs.99,22,532/- of merged entity M/s. Tash Investment Pvt. Ltd in F. Y. 2019­20 relevant to A.Y, 2020-21, however the TDS receivable of which Rs. 9,92,253/claimed in the return of F.Y. 2020-21 relevant to A.Y. 2021-22.

2.4. Moreover, the assessee-company also booked and offered for tax an income of Rs.2,00,000/- of merged entity M/s.Tash Investment Pvt. Ltd in F. Y. 2020-21 relevant to A.Y. 2021-22 and claimed the TDS receivable of Rs.17,000/- in return of income of F. Y. 2020-21 relevant to A.Y. 2021-22.

2.5. The CPC, Bengaluru, passed a rectification order under section 154 of the Act on 19/12/2022, where the credit of TDS amounting to Rs.10,09,254/- was not granted.

2.6. The assessee filed an appeal against the order of CPC, Bengaluru and the Ld.CIT(A) dismissed the appeal stating that the assessee has failed to file a declaration as per proviso to sub-clause (i) and the procedures as per sub-clause (ii) and (iii) of clause (2) of Rule 37BA.

3. Now, the assessee is appeal before us with following grounds of appeal:

“The appellant being dissatisfied with the order passed by the learned Commissioner of Income Tax (Appeals), NFAC, u/s 250 of the Act, dated 24/07/2023, presents this appeal against the said order on the following amongst other grounds:

1. The order passed by the learned CIT(A) is bad in law, being contrary to the provisions of the Act and without considering the written submission of the appellant and therefore be quashed.

2.

i) The learned CIT(A), NFAC has erred in confirming the addition made by the CPC, Income Tax department on account of not granting credit of TDS/TCS amounting to Rs. 10,09,254/-.

ii. For the year, the appellant Company M/s Shiva Pharmachem Limited entered into schemes of arrangement under section 230 to 232 of the Companies Act 2013 with M/s Tash Investment Pvt. Ltd. vide NCLT Order dated 10th September 2020. The effective date of such schemes is 01st April 2019.

iii. Accordingly, the appellant company has considered and offered the Income of merged entity M/s Tash Investment Pvt. Ltd amounting to Rs. 99,22,532/- in the ITR of A.Y 2020-21. The TDS credit of Rs. 9,92,254/- of the mentioned income of A.Y. 2020-21 was claimed in the ITR of A.Y. 2021-22. Also, the appellant company has considered and offered the income of merged entity M/s Tash Investment Pvt. Ltd amounting to Rs. 2,00,000/- in the ITR of A.Y. 2021-22 and has accordingly claimed the TDS credit of Rs. 17,000/- the ITR of AY 2021-22.

iv. The CPC, Income Tax Department, while processing return of income has considered the income offered of the amalgamated and merged entity of M/s. Tash Investment Private Limited, but has erred in not granting TDS credit receivable of the sald income.

v. The Ld. CIT(A) has erred in understanding basic fundamental that if a business, along with its assets and liabilities, is transferred by one owner to another, a benefit (TDS credit) so transferred would be entitled to the same treatment in the hands of successor.

vi. Moreover, the appellant also wants to invite attention on the judgement of the hon’ble ITAT Hyderabad in the matter of Ces Limited, Hyderabad vs Dy. Commissioner of Income Tax. Dated 21.11.2019 wherein the identical issue was covered, and the Hon’ble ITAT has held that “we agree with the contention of the assesse that when the amalgamated results or income of the amalgamating company has been taken into consideration, then the credit for advance tax paid and TDS made by amalgamating company should be given to amalgamated company i.e. assesse before us.”

Therefore, the Ld. CPC, Income Tax Department be directed to grant claim of the credit of TDS amounting to Rs. 10,09,254/- to the Appellant company.

Your appellant craves for leave to alter/amend/withdraw/modify any of the above grounds and/or to add any ground before hearing.”

4. The Ld. Counsel for the assessee contended that due to the scheme of arrangement, the operations and income of the amalgamated and merged company, M/s. Tash Investment Pvt. Ltd., continued until the date of the NCLT order. The TDS credit for the income generated during this period was claimed in the assessee’s tax return for the A.Y. 2021-22. However, while processing the return, the CPC considered the income but did not grant the corresponding TDS credit. He also placed reliance on decision of Mumbai Bench of ITAT in case of Culver Max Entertainment Pvt. Ltd. Vs. Asst. Commissioner of Income Tax, Circle-13(2)(2) in ITA No. 7685/MUM/2019 and ITA No. 925/MUM/2021. The Hon’ble Mumbai Bench of the ITAT has addressed a similar issue in the case of Culver Max Entertainment Pvt. Ltd. in ITA No. 7685/MUM/2019 for A.Y. 2015-16 and ITA No. 925/MUM/2021 for A.Y. 2016-17. In this case, the ITAT directed the AO to allow TDS credit even if the TDS certificates were in the name of the amalgamated/demerged company, provided the relevant income was assessed in the hands of the assessee. While deciding so, the Tribunal relied on similar decisions in the following cases:

• Popular Complex Advisory P Ltd vs. ITO (ITA No.595/Kol/2023 dated 22nd August, 2023).
• Adani Gas Ltd vs. ACIT (ITA Nos.2241 & 2516/Ahd/2011 dated 18­01-2016).
• Ultratech Cement Ltd vs. DCIT (ITA No.1412/Mum/2018 & others dated 14.12.2021).

4.1. In these cases, it was held that the resulting company in a demerger and the transferee company in a transfer are eligible to claim TDS credit even if the TDS certificates are in the name of the demerged/transferor company.

5. The Ld. Departmental Representative relied on the order of the Ld.CIT(A) and pointed out the procedural part of the rule 37BA. However, it was noted that the assessee itself is Deductor and Deductee company is a merged entity. Therefore, the Ld.CIT(A) should have decided on the facts and merits of the case.

5.1. Following the aforementioned decisions of the Co-ordinate Benches, we set aside the order of the Ld.CIT(A) and direct the AO to allow the TDS credit to the assessee, after verifying that the relevant income has been assessed in this year.

In the result, the appeal of the Assessee is allowed.

Order pronounced in the Open Court on 4th July, 2024 at Ahmedabad.