TaxTMI 
TaxTMI 
2023 (6) TMI 968
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....e assessee in ROI of Rs 43,90,32,670/- was denied and assessee was advised to approach CBDT u/s 119 (2) of The Act. 03. The learned AO is aggrieved with the directions of the LD DRP holding the draft Assessment order passed as void ab initio and so is in Appeal by cross Objection. 04. Brief facts of the case shows that the assessee is an Indian company, wholly owned subsidiary of a foreign entity and is engaged in the business of distribution of sports channel. By the order of the Honourable Bombay high court, scheme of amalgamation of assessee i.e. Star Sports India Pvt Ltd with Star India Private Limited was approved as per order dated 22/8/2014 having appointed date as 4/11/2013 and effective date as 21, November 2013. Thus with effect from 21/11/2014, assessee company namely Star Sports India Pvt Ltd was not existing on account of merger with Star India Private Limited. Star Sports India Pvt Limited is Amalgamating company and Star India Private Limited is amalgamated company. Thus, simply after 21/11/2014, Star Sports India Private Limited is not at all in existence for all purposes. 05. Assessee [Star Sports India Private Limited] filed its return of income [ROI] on ....
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....Star Sports India Private Limited, non-existent entity. This return of income was made as part of direction of the learned dispute resolution panel as annexure A. ii Subsequently a revised return was filed in the name of Star sports India private limited [ non-existent entity] on 30/3/2016 which was signed by Mr Rishi Gaind who was a director in Star India private limited, amalgamated company. Thus Revised ROI is in the name of a non-existent entity stating PAN of a non-existent entity but signed by the director of the amalgamating company. iii Thus both the returns, original as well as the subsequent revised return was filed in the name of Star sports India private limited, using PAN of Star Sports India Private Limited , which is merged with Star India private limited on a date prior to the date of filing of the returns of income and since Star sports India private limited has ceased to exist after the amalgamation i.e. with effect from 21/11/2014 , and as such no return of income could have been filed in the name of such a non existing person, the assessee was asked why these returns of income filed in the name of a non existing entity should not be treated as ....
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.... filing of the return has to be treated as non est. Accordingly the return of income filed on 30/11/2014 was treated as Non est. The LD DRP further noted that the subsequent revised return was also filed in the name of Star sports India private limited, a non-existent company but was signed by the director of Star India private limited i.e. amalgamated company filed in the name of a non existing person has also to be treated as non-est. The learned DRP was also of the view that revised return can be filed only when there is a valid original return. As the original return itself has held to be not valid, the revised return also is not valid. The learned DRP further noted that despite amalgamation on 21/11/2014 the audit report was prepared in the name of amalgamating company and was also signed by the director of amalgamating company using the seal of amalgamating company. This was attached as annexure C to the direction. The DRP was of the opinion that even audit could not have been made on a non existing person as no action could be taken by anybody on behalf of a non existing person. Therefore signing the audit report in the name of a non-existent company as a consequence of merg....
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....ted with Star India Pvt. Ltd. Therefore as on 21st November, 2014 being effective date of amalgamation Star sports India private limited has merged with Star India Pvt. Ltd. ii On 28th August, 2015 a notice under section 143(2) of the Act was issued by the ACIT, Circle-1, LTU, New Delhi in the name of Star Sports India Pvt. Ltd. On September 10, 2015 the assessee responded to the above notice stating in the subject heading that Star Sports India Pvt. Ltd. has now merged with Star India Pvt. Ltd. This letter was signed by Star India Pvt. Ltd. iii Subsequently the TPO, who received the reference communicated with the assessee by issuing a notice under section 92CA(2) of the Act on 27.11.2015 to the Principal Officer of Star Sports India Pvt. Ltd. On 21st December, 2015 Star India Pvt. Ltd. communicated with the TPO stating in the subject heading itself that Star Sports India Pvt. Ltd. has been amalgamated with Star India Pvt. Ltd. The assessee also gave the PAN of Star India Pvt. Ltd. Once again the TPO on 08.09.2016 issued notice under section 92D(3) of the Act to Star Sports India Pvt. Ltd. and further on 08.09.2016 itself under section 92CA(2) of the Act. Star In....
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....ted to the assessee as per the provisions of section 240 of the Act and accordingly treating of the validly filed return as invalid return without following the procedure of section 139(9) of the Act with the sole intention of denying refund to the assessee is not justified. He extensively referred to his factual paper book filed containing 13 documents, supplementary factual paper book adding one more document and also a legal paper book referring to 9 different judicial precedents on validity of revised return, provisions of section 139(9) and section 240 of the Act. He also referred to the decision of the Coordinate Bench in case of Fed Express Transportation And Supply Chain Services (India) Private Limited versus Deputy Commissioner Of Income Tax 108 taxmann.com 542 as well as the decision of the Hon'ble Bombay High Court in the case of International Air Transport Association vs. DCIT 68 taxmann.com 46. With respect to his submission that the valid revised return of income curing any defects cannot be ignored, he relied upon the decision of the honourable Bombay High Court in the case of prime securities Ltd versus Varinder Mehta (2009) 317 ITR 27 wherein the return verified b....
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.... honourable Karnataka High Court in case of K Nagesh versus ACIT 376 ITR 173, wherein the revised return filed by the assessee was declared invalid and therefore tax and interest amount offered by the assessee based on such elevated invalid return was held to be refundable to the assessee. For this proposition he further referred to the decision of the honourable madras High Court in case of Dr Tirupatty Reddy versus ACIT 410 ITR 186 where the assessment was nullified and only tax deposited by the assessee in excess of what was declared by it on its own in return of income was held to be entitled to be refunded to the assessee. He further referred to the decision of the honourable allowable High Court in case of Harihar Nath Agarwal private family trust versus ACIT 264 ITR 612 wherein the assessment order was time barred, the revenue was directed to refund amount of tax paid to the assessee. 12. The learned D.R. on the issue of ROI held to be non est, submitted that :- i Even after amalgamation, assessee has filed original ROI in the name of non existing entity Star Sports India Private Limited using PAN. ROI is also signed by the director of Non existing company. There....
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....ted with Star India Pvt. Ltd. having appointed date of 4th November, 2013 and effective date of 21st November, 2014. ii Star India Pvt. Ltd. having PAN No. AAACE2334C filed its return of income on 30.11.2014 duly signed by its Director Mr Sanjay Gupta. iii Thus it is clear that when the assessee filed the original return of Income , on 30th November, 2014, the assessee Star Sports India Pvt. Ltd. got amalgamated with Star India Pvt. Ltd. Thus it is apparent that on 30/11/2014, Star sports India Pvt Limited was a non existing company as it had already merged with another Company, Star India Pvt Limited. It was not known that how one Mr Sanjay Gupta signed and verified the ROI as director of Star Sports India Pvt Limited when it was not in existence on that date. It is also not clear that how PAN of a non existing entity can be used for filing ROI. Thus it was the ROI filed by a non existing entity. iv This Return was revised on 30/03/2016 placed at serial no 8 of the paper book. This ROI was also in the name of Star Sports India Pvt Limited, using PAN of Star Sports India Private Limited on 30/3/2106 but this time verified by director of Star India Pvt Lim....
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.... (i) manufacturing account, trading account, profit and loss account or, as the case may be, income and expenditure account or any other similar account and balance sheet; (ii) in the case of a proprietary business or profession, the personal account of the proprietor; in the case of a firm, association of persons or body of individuals, personal accounts of the partners or members; and in the case of a partner or member of a firm, association of persons or body of individuals, also his personal account in the firm, association of persons or body of individuals; (e) where the accounts of the assessee have been audited, the return is accompanied by copies of the audited profit and loss account and balance sheet and the auditor's report ^12[and, where an audit of cost accounts of the assessee has been conducted, under section 233B^13 of the Companies Act, 1956 (1 of 1956), also the report under that section]; (f) where regular books of account are not maintained by the assessee, the return is accompanied by a statement indicating the amounts of turnover or, as the case may be, gross receipts, gross profit, expenses and net profit of the business ....