R. JAYASI1WHA BABU, J.
As to whether on account of the failure of the amalgamating company to distribute the statutorily prescribed portion of the undistributed profits an order under s. 104 of the IT Act cannot be made against the amalgamated company is the question that has been referred to us at the instance of the Revenue. It is not in dispute that the charge for additional tax is created by s. 104 of the IT Act, 1961, as there is no other provision in the Act which creates a charge for tax on such undistributed profits. It is also not in dispute that the order was made within the period of limitation prescribed under the section.
2. The amalgamated company is M/s TY. Sundaram Iyengar and Sons Pvt. Ltd., Madras, and the amalgamating company was M/s Sundaram Motor Private Limited. An order of amalgamation was passed by this Court in CP No. 52 of 1970, petition having been filed by the two companies on which this Court sanctioned a scheme of arrangement and amalgamation that had been proposed by the companies and approved by the shareholders in the general meeting. Clause 2 of the scheme provided that all the property, rights, powers and claims of the amalgamating company-the same was referred to in the scheme as transferor company-were transferred to be vested in the amalgamated company, which company was referred to in the scheme as transferee company. Clause 3 of the scheme provided that M/s TY. Sundaram Iyengar & Sons Pvt. Ltd. shall pay and discharge all liabilities, duties and obligations of whatsoever nature of M/s Sundaram Motor Pvt. Ltd. and shall be liable for and pay and discharge all levies, taxes and public charges whatsoever including income-tax and sales-tax due to any Government or public authority.
3. The ITO having found that the amalgamating company had failed to distribute the statutory percentage of the distributable income of that company for the asst. yr. 1970-71, initiated proceedings under s. 104 of the Act on 31st Jan., 1975, and notice was sent to the amalgamated company which resisted the same on the ground that the amalgamating company which had failed to distribute the statutory percentage of its distributable income was no longer in existence and therefore, no proceedings against a non-distingue company could be initiated or continued. The amalgamating company M/s Sundaram Motor Pvt. Ltd. was, by the time when the notice was issued by the ITO had been dissolved and all its assets and liabilities had been taken over by the amalgamated assessee-company.
4. The CIT(A) to whom the amalgamated company, M/s TY. Sundaram Iyengar & Sons Pvt. Ltd. appealed, held that the liability sought to be enforced was that of a company which was no longer in existence and that no proceedings could be initiated or continued against the amalgamated company. That view of the CIT(A was affirmed by the Tribunal.
5. The Tribunal relied upon a decision of the Supreme Court in the case of MM Parikh, ITO vs . Navanagar Transport & Industries Ltd. : [1967]63ITR663(SC) ' - . The Supreme Court therein was concerned with s. 23A of the IT Act, 1922, which more or less corresponds to s. 104 of the IT Act, 1961. The Court held that the order made under s. 23A is not an order of assessment and that the liability for payment of levy under that section arises only after the ITO makes an order and not at any earlier point of time. The correctness of the decision rendered in the case of MM Parikh was questioned before a larger Bench in the case of Pillani Investment Corpn. Ltd. vs . ITO : [1972]83ITR217(SC) . The apex Court held that the decision in M.M Parikh's case could not be said to be erroneous and did not call for any review. While holding so, the Court observed that the taxable event is the non distribution of some part of the profits which have already been assessed. In the case of CIT vs . JK. Commercial Corporation Ltd. : [1976]105ITR219(SC) (SC), the apex Court referred to the case of M.M. Parikh (supra) and held that though the order made under s. 23A of 1922 Act may not be an order of assessment, nevertheless for the purpose of s. 35(1) of the Act, the order must be regarded as one which is supplementary assessment order.
6. The liability of a company which had failed to distribute the statutory percentage of profits, therefore, arises only when an order is made under s. 104 of the Act. Learned counsel for the Revenue, however, submitted relying upon the decision of Calcutta High Court in Blue Star Engineering Co. (P) Ltd. vs . CIT : [1980]122ITR156(Cal) : , that the liability of the company to pay tax on the undistributed profits arises when there is a failure to distribute such profits and would not be postponed till such time an order is made under s. 104 of the Act. With respect, we are unable to agree with that view. As laid down by the apex court in the case of M.M. Parikh (supra) the liability to pay tax under s. 104 does not arise at any point of time prior to the making of an order therein in accordance with the requirements of that section.
7. Learned counsel for the assessee submitted that as no liability had accrued for the amalgamating company, the amalgamated company cannot be made to suffer a tax liability for payment of which was not taken over by it and the tax demanded was not in respect of profits and gains of the amalgamated company but related to those of the amalgamating company. Learned counsel invited our attention to the decision of Delhi High Court in the case of Birla Cotton Spg. & Wvg. Mills L td. vs . CIT : [1980]123ITR354(Delhi) , in support of his submission that no proceedings can lie against a dissolved company. The High Court in that judgment held that the reference brought before the High Court was incompetent as the reference was properly required to be made before the High Court of Rajasthan and not the High Court of Delhi. Even after having held so, one of the judges who constituted the Bench observed that the appeal which had been preferred by the amalgamated company before the Tribunal from which the order of reference arose was incompetent and was null and void as the proceedings initiated against the dissolved company was wholly invalid and no grievance could be said to exist in respect of such action on the part of the ITO. With respect, we are unable to subscribe to the view of the Delhi High Court that under no circumstances, a proceeding can be initiated against the amalgamated company in respect of a liability though un-crystallised of the amalgamating company. Moreover, the case before the Delhi High Court arose out of the notice issued to a nonexisting company and not the amalgamated company and the company to which the notice had been issued had been dissolved long prior to the issuance of the notice.
8. An order of amalgamation made by the High Court under the provisions of s. 394 of the Companies Act is not an order which is meant to relieve either of the legal entities which are parties to the scheme of amalgamation, from the liability for payment of tax. An order of amalgamation is intended to facilitate reconstruction and amalgamation of the companies expeditiously in a manner which is beneficial to the company and its shareholders of the two companies so long as such amalgamation is not opposed to public interest. None of the provisions of the Companies Act providing for amalgamation, nor any other provision in the Act, confers immunity from payment of tax to either of the entities which are parties to the order of amalgamation. That is the reason why the scheme of amalgamation invariably includes a provision for taking over by the amalgamated company of all liabilities and assets of the amalgamating company. In cases where such liabilities are not taken over, the company Court would have to be satisfied that suitable provision is made for the payment of liabilities before the assets are allowed to be transferred from the amalgamating company to the amalgamated company. The procedure prescribed for amalgamation of the companies also provides for convening a meeting of creditors besides considering the wishes of the shareholders, the object being that by reason of amalgamation the claims of creditors against two companies involved in the scheme are not to be adversely affected solely by reason of amalgamation. What is true for the creditors is true in even greater measure with regard to the statutory liabilities, particularly income-tax.
9. It is not open to the amalgamated company which has taken over all assets and liabilities of the amalgamating company to claim that it is not in any way liable for the tax payable by the amalgamating company, even though the order under s. 104 came to be made after the order of amalgamation and after the dissolution of the amalgamating company but on account of acts of omission and commission committed by the amalgamating company and its failure to carry out the obligation which were required to be carried out. The fact that the liability had not crystallised and the charge had not been created would not entitle the amalgamated company to avoid the payment of the tax under s. 104 that would have been payable if the amalgamating company had continued to exist.
10. Notice in this case was given by the ITO rightly to the amalgamated company as the amalgamating company had been dissolved by the time the notice was issued and the liability, after amalgamation, was that of the amalgamated company. Under the terms of amalgamation, the amalgamated company had taken over the obligation to pay and discharge 'a liabilities, debts, and obligations of whatsoever nature' of the amalgamating company. The liability of the amalgamating company to pay tax under s. 104 of the Act, became the liability or obligation of the amalgamated company which had taken over all liabilities duties and obligations of the amalgamating company in terms of the order of amalgamation.
11. The failure on the part of the amalgamating company to distribute the statutory percentage of the accumulated profits is the foundation for the order passed by the ITO under s. 104. Such failure on the part of the amalgamating company is an act of omission which had within itself the potential for an order under s, 104 being made against it, at any time within a period of four years. By proposing a scheme of amalgamation and amalgamating itself with the amalgamated company, the obligation to comply with an order under s. 104 when made did not get wiped out. That obligation became the obligation of the amalgamated company. The dissolution of the amalgamating company thereafter was not an event of any relevance and had no effect on the obligation which had been taken over by the amalgamated company in terms of the order of amalgamation.
12. One of the consequences of amalgamation was that the amalgamating company became incapable of having the benefit of s. 105. Had it continued to exist it would have had the option of distributing the undistributed profits, thereby avoiding the liability to tax under s. 104. That circumstance, however, cannot be used as a shield by the amalgamated company to avoiding payment of tax. The Revenue is in no way responsible for the amalgamating company's act of being a party to the scheme of amalgamation and thereby rendering itself incapable of taking the benefit of s. 105.'
13. The provisions of Companies Act should be read harmoniously with those of the IT acct. After the transfer of all assets and liabilities debts and obligations of the amalgamating company to the amalgamated company in terms of the sanction accorded by the company Court under s. 394 of the Companies Act, the striking out of the name of the amalgamating company from the register does not wipe out the obligation to comply with an order made by the ITO under s. 104 and the order is capable of being enforced against the amalgamated company.
14. Our answer to the question that has been referred to use, therefore is that the Tribunal was not right in holding that the proceedings against the amalgamated company could not be initiated on account of the failure of the amalgamating company to distribute the statutory percentage of the accumulated profits,- Our answer is in favour of the Revenue and against the assessee. The Revenue shall be entitled to costs in the sum of Rs. 750 (Rs. seven hundred and fifty only).