LexASPINWALL AND CO. LTD. versus INSPECTING ASSISTANT COMMISSIONER
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[2026] 5 S.C.R. 160 : 2026 INSC 359 Aspinwall and Co. Ltd. v. Inspecting Assistant Commissioner (Civil Appeal No. 7796 of 2012) 13 April 2026 [Rajesh Bindal* and Vijay Bishnoi, JJ.] Issue for Consideration Whether in terms of the provisions of Kerala Agricultural Income Tax Act, 1991, the amalgamated company as successor of the amalgamating company shall be entitled to set-off of the losses suffered. Headnotes† Kerala Agricultural Income Tax Act, 1991 – ss.12, 54 – Income Tax, 1961 – s.72A – A company named PRP amalgamated with the appellant company – The scheme of amalgamation was sanctioned in November 2006 – The appointed date was fixed as 01.01.2006 – There were accumulated losses in the balance sheet of amalgamating company – The issue is, as to whether the same could be claimed as a set-off against the income of the amalgamated company – Appellant has relied only on the clause 14.2 in the scheme of amalgamation – High Court turned down the claim of the appellants – Correctness: Held: The appellant has not been able to refer to any provision under the Kerala Act in terms of which the losses suffered by amalgamating company can be set-off against the income of the amalgamated company – The reliance on clause 14.2 of the Scheme is rejected – Further, the High Court recorded that the loss of the amalgamating company pertained to a period beyond 8 years, hence, in terms of s.12 of the Kerala Act the appellant will not be entitled to any set-off – It is a case wherein the appellant had lost in all fora – To challenge the aforesaid findings of fact recorded by the High Court in the impugned order, no specific ground has been raised in the petitions filed before this * Author [2026] 5 S.C.R. 161 Aspinwall and Co. Ltd. v. Inspecting Assistant Commissioner Court – This Court does not find any merit in the present appeals. [Paras 14, 15] Kerala Agricultural Income Tax Act, 1991 – ss.12, 54 – Income Tax, 1961 – s.72A – Companies Act, 1956 – Whether the judgment in Dalmia Power Ltd.’s case covers the case of the appellant: Held: The facts in the present case are distinguishable – Neither there is any statutory requirement for issuing notice to the State Government before any scheme of amalgamation is approved by the Court under the 1956 Act nor such notice was issued – Hence, to state that the judgment in Dalmia Power Ltd.’s case covers the case of the appellant, is misconceived and deserves to be rejected. [Para 13] Companies Act, 1956 – s.394-A – Scope of – Discussed: Held: s.394A of 1956 Act makes it mandatory on the Tribunal to issue notice in every application filed u/ss. 391 or 394 to the Central Government and any objections raised are to be considered – s.394 of the aforesaid Act talks about amalgamation of the companies – The Ministry of Corporate Affairs, Government of India, had issued a Circular dated 15.01.2014 bearing F.No.2/1/2014 providing that while responding to the notices issued to the Government u/s. 394-A, the Regional Director shall invite specific comments from the Income Tax Department within 15 days – If no response is received from the Income Tax Department during the aforesaid period, it may be presumed that the Income Tax Department has no objection to the action proposed u/ss.391 or 394, as the case may be – It is in the light of the aforesaid provision and the circular that the comments of the Income Tax Department are mandatory. [Para12] Kerala Agricultural Income Tax Act, 1991 – ss.2(7), 2(20), 3, 48, 54, 60 – Scope of – Discussed. [Paras 9-12] Case Law Cited General Radio & Appliances Co. Ltd. v. M.A. Khader, 1986 INSC 85 : [1986] 2 SCR 607 : (1986) 2 SCC 656; Saraswati Industrial Syndicate Ltd. v. CIT, 1990 INSC 266 : [1990] Supp. 1 162 [2026] 5 S.C.R. Supreme Court Reports SCR 332 : (1990) Supp. SCC 675; Singer India Limited v. Chander Mohan Chadha and Others, 2004 INSC 447 : [2004] 3 Supp. 3 SCR 535 : (2004) 7 SCC 1; CIT v. Maruti Suzuki (India) Ltd, 2019 INSC 815 : [2019] 9 SCR 799 : (2020) 18 SCC 331; Religare Finvest Ltd. v. State (NCT of Delhi), 2023 INSC 819 : [2023] 12 SCR 197 : (2024) 1 SCC 797 – referred to. Dalmia Power Ltd. and Another v. Assistant Commissioner of Income-Tax, 2019 INSC 1410 : [2019] 18 SCR 1236 : (2020) 420 ITR 339 – distinguished. List of Acts Kerala Agricultural Income Tax Act, 1991; Income Tax, 1961; Companies Act, 1956; Companies Act, 2013. List of Keywords Amalgamation; Scheme of amalgamati
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