M/S Dalmia Power Ltd. vs The Assistant Commissioner Of Income ...

2. The factual background of this case briefly stated, is that:

On the coming into force of the Companies Act, 2013, the Company Petitions were transferred to NCLT, Chennai and NCLT, Guwahati.

2.7 The Appellants/ Transferee Companies manually filed revised Returns of Income on 27.11.2018 with the Department after the Schemes were sanctioned and 4 approval was granted by the NCLT. The revised Returns were based on the revised and modified computation of total income and tax liability of the Transferor/Amalgamated Companies. In the revised Returns of Income, the Appellant No.1 claimed losses in the current year to be carried forward amounting to Rs.2,44,11,837/­; whereas Appellant No.2 claimed losses in the current year, to be carried forward, amounting to Rs.1105,93,91,494/­.

The Department was not justified in rejecting the revised Return of Income on the ground that it had been filed manually, instead of being filed electronically. Rule 12(3) of the Income Tax Rules 8 requires filing of revised Returns of Income electronically, which is not applicable where revised Returns of Income are filed by the assessee pursuant to a Scheme of Arrangement and Amalgamation approved and sanctioned by the NCLT.

The Department did not consent to waive the procedures or statutory requirements prescribed under S.139(5) and 119(2)(b) of the Income Tax Act in respect of filing of revised Returns of Income. 2.17 The Department vide letter dated 11.07.2019 informed the Appellants that in case they fail to file the revised Returns before the expiry of the limitation period prescribed for completion of assessment in accordance with Explanation 1 to Section 153 r.w. Proviso (1) i.e. 60 days from the date of the impugned Judgment, the 10 assessment for A.Y. 2016­2017 would be conducted on the basis of the original Returns filed by them. 2.18 The Appellants made a representation on 22.07.2019 stating that subsequent to the approval and sanction of the Scheme of Arrangement and Amalgamation, the income of the Transferor companies merged in the hands of the Appellants w.e.f. 01.01.2015, being the Appointed Date as the “date of succession” under S. 170 of the Act. Accordingly, the Appellants requested the Department to give cognizance to the Scheme, and accept the revised Return of Income filed on 27.11.2018, while completing the assessment for the A.Y. 2016­2017.

2.19 The Department informed the Appellants on 05.08.2019 that since the revised Returns were not in accordance with Sections 139(5), 139(3) of the Act r.w. Rule 12(3) of the Income Tax Rules, 1962, the revised Returns were invalid, and could not be considered in view of the procedural requirement under Section 119(2)(b) read with CBDT Circular No. 9 of 2015. 11 2.20 Aggrieved by the Judgment of the Division Bench, the Appellants have filed the present common Civil Appeals on 09.08.2019 before this Court.

The Schemes incorporated provisions for filing the revised Returns beyond the prescribed time limit since the Schemes would come into force retrospectively from the Appointed Date i.e. 01.01.2015.

Accordingly, the Appellants filed their Revised Returns on 27.11.2018. The re­computation would have a bearing on the total income of the Appellants with respect to the A.Y. 2016­2018, particularly on matters in relation to carrying forward losses, unabsorbed depreciation etc.

11. In light of the aforesaid discussion, we find that the learned Single Judge had rightly allowed the Writ Petitions. We accordingly set aside the impugned Judgment and Order dated 04.07.0219 passed by the learned Division Bench, and restore the judgment dated 30.04.2019 passed by the learned Single Judge. Accordingly, the Civil Appeals are allowed.

The Department is directed to receive the revised Returns of Income for A.Y. 2016­2017 filed by the Appellants, and complete the assessment for A.Y. 2016­2017 after taking into account the Schemes of Arrangement and Amalgamation as sanctioned by the NCLT.

12. Pending Applications, if any, are accordingly disposed of. Ordered accordingly.