BLUE STAR ENGINEERING & ELECTRONICS LTD., MUMBAI V. DCIT -CIRCLE 1(1)(1), MUMBAI

ITA 1516/MUM/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 7275 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-01-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2015-2016
• Appeal Filed On: 13-03-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: THARIAN OMMEN
• Assessee Lawyers: NEERAJ SHETHLD
• Keywords: Scheme of amalgamation; Revised return; TDS
• Section: 143(1)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI , , BEFORE HONBLE SHRI MAHAVIR SINGH, VP AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM (HEARING THROUGH VIDEO CONFERENCING MODE) ./ I.T.A. NO.1516/MUM/2019 ( / ASSESSMENT YEAR: 2015-16) BLUE STAR ENGINEERING & ELECTRONICS LTD. (SUCCESSOR-IN-INTEREST OF BLUE STAR DESIGN AND ENGINEERING LTD.) KASTURI BUILDING, MOHAN T. ADVANI CHOWK JAMSHEDJI TATA ROAD, MUMBAI - 400020 / VS. DCIT - CIRCLE 1(1)(1) R.NO.533, 5 TH FLOOR AAYKAR BHAWAN, M.K.ROAD MUMBAI 400020 '# ./ ./PAN/GIR NO. AACCB-2978-D ( #% /APPELLANT ) : ( &'#% / RESPONDENT ) ASSESSEE BY : SHRI NEERAJ SHETH-LD. AR REVENUE BY : SHRI THARIAN OMMEN, LD.SR. DR / DATE OF HEARING : 21/01/2021 / DATE OF PRONOUNCEMENT : 25/01/2021 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEAR (AY) 2015-16 CONTEST THE ORDER OF LEARNED COMMISSIONER O F INCOME TAX (APPEALS)-2, MUMBAI [CIT(A)] ORDER DATED 28/12/2018 ON CERTAIN GROUNDS OF APPEAL. THE ASSESSEE HAS ALSO RAISED AN ADDITIONAL GROUND VIDE PETITION DATED 04/12/2020 WHEREIN IT HA S BEEN PLEADED THAT INTIMATION PASSED U/S 143(1) IS TO BE TREATED AS INVALID AND BAD IN LAW SINCE THE SAME HAS BEEN ISSUED IN THE NAME O F A NON- EXISTENT ENTITY. THE IMPUGNED ORDER HAS DISMISSED A SSESSEES 2 APPEAL SINCE THE SAME WAS FOUND TO BE INVALID IN VI EW OF THE FACT THAT THE APPEAL WAS FILED IN THE NAME OF A NON-EXIS TENT ASSESSEE. 2. WE HAVE CAREFULLY HEARD THE RIVAL SUBMISSIONS AN D PERUSED RELEVANT MATERIAL ON RECORD INCLUDING INTIMATION IS SUED BY REVENUE TO ASSESSEE U/S 143(1) DATED 19/06/2017. 3. THE MATERIAL FACTS ARE THAT THE ASSESSEE FILED R ETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION ON 29/09/2015. HOW EVER, THE RETURN WAS REVISED AND AGAIN REVISED ON 30/03/2017. THE FINAL REVISED RETURN WAS PROCESSED U/S 143(1) AND INTIMAT ION WAS ISSUED BY CENTRALIZED PROCESSING CENTER (CPC) ON 19/06/201 7 IN THE NAME OF BLUE STAR DESIGN AND ENGINEERING LIMITED (SINCE MER GED WITH BLUE STAR ENGINEERING & ELECTRONICS LIMITED). IN THE INTIMATION, THE AMOUNT OF REFUND DUE TO THE ASSESSEE WAS REDUCE D SINCE CREDIT U/S 115JAA OF EARLIER YEARS WAS REDUCED BY RS.2.51 LACS. THERE WAS SHORT GRANT OF TDS CREDIT ALSO. 4. AGGRIEVED BY SAID INTIMATION, THE ASSESSEE PREFE RRED APPEAL BEFORE LD. CIT(A) IN FORM NO.35. THIS FORM WAS FILE D IN THE NAME OF BLUE STAR DESIGN AND ENGINEERING LIMITED. THE LD. CIT(A) NOTED THAT THE ASSESSEE COMPANY HAD AMALGAMATED WITH BLUE STAR ENGINEERING & ELECTRONICS LIMITED W.E.F. 01/02/2015 AS PER APPROVAL OF HONBLE BOMBAY HIGH COURT ORDER DATED 1 8/12/2015. PURSUANT TO THE SAME, THE ASSESSEE FILED REVISED RE TURN OF INCOME ON 15/10/2016 COVERING TRANSACTIONS FROM THE PERIOD 01/04/2014 TO 31/01/2015. THE RETURN WAS AGAIN REVISED ON 30/03/2 017 WHICH WAS PROCESSED U/S 143(1) AND ACCORDINGLY, AN AMOUNT OF RS.14.64 LACS WAS REFUNDED TO THE ASSESSEE. SINCE AT THE TIM E OF FILING OF APPEAL ON 19/07/2017, THE ERSTWHILE ASSESSEE NAMELY BLUE STAR 3 DESIGN AND ENGINEERING LIMITED WAS NOT IN EXISTENCE, THE APPEAL FILED IN THE NAME OF NON-EXISTENT ENTITY WAS INVALI D. ACCORDINGLY, THE APPEAL WAS DISMISSED AS INVALID APPEAL. AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 5. GOING BY THE FACTUAL MATRIX, WE OBSERVE THAT ASS ESSEES OWN FOLLY HAS LED TO DISMISSAL OF APPEAL BEFORE LD. CIT (A). THE RETURN WAS REVISED TWO TIMES IN THE NAME OF NEW ENTITY TO GIVE EFFECT TO THE SCHEME OF AMALGAMATION. THEREFORE, IT WAS OBLIGATOR Y FOR THE ASSESSEE TO FILE THE APPEAL IN THE NAME OF NEW ENTI TY ONLY SINCE THE APPEAL COULD NOT BE FILED IN THE NAME OF NON-EXISTE NT ENTITY AND THE APPEAL SO FILED WOULD BE INVALID ONE AS RIGHTLY HEL D BY LD. CIT(A). 6. EVEN IN THE ADDITIONAL GROUND, THE ASSESSEE IS S EEKING QUASHING OF INTIMATION WHICH HAS MERELY PROCESSED A SSESSEES REVISED RETURN OF INCOME AND THE SAME HAS BEEN ISSU ED IN THE SAME NAME IN WHICH THE REVISED RETURN HAS BEEN FILE D BY THE ASSESSEE. IF THE INTIMATION WAS TO BE QUASHED, AS P ER ASSESSEES ADDITIONAL GROUND, THEN THE ASSESSEE WOULD BE LIABL E TO REFUND BACK THE REFUND GRANTED UNDER THE SAID INTIMATION. THERE IS A VAST DIFFERENCE IN MERE PROCESSING OF RETURN VIS--VIS F RAMING OF ASSESSMENT. THEREFORE, WE DO NOT FIND ANY SUBSTANCE IN THE ADDITIONAL GROUND RAISED BEFORE US. THE SAME STAND DISMISSED. 7. PROCEEDING FURTHER, WE FIND THAT FORM NO.35 WAS FILED WITHIN TIME AND THE ASSESSEE WAS DILIGENT IN PREFERRING FU RTHER APPEAL BEFORE LD. CIT(A). KEEPING IN VIEW THE SAME, WE DIR ECT ASSESSEE TO SUITABLY AMEND FORM NO. 35 IN THE NAME OF NEW ENTIT Y OR ALTERNATIVELY FILE A FRESH FORM NO. 35 WHICH SHALL BE TAKEN UP BY LD. CIT(A) ON MERITS. HOWEVER, THE CONCESSION SO GRANTE D TO THE 4 ASSESSEE WOULD COME AT A COST OF RS.10,000/- WHICH SHALL BE DEPOSITED BY THE ASSESSEE IN PRIME MINISTER NATIONAL RELIEF FUND WITHIN 15 DAYS OF RECEIPT OF THIS ORDER. THE PROOF OF THE SAME SHALL BE SUBMITTED BEFORE THE REGISTRY AS WELL AS BEFORE LD. CIT(A) AND THE SAME SHALL ENABLE LD. CIT(A) TO PROCEED FOR ADJ UDICATION OF APPEAL ON MERITS. 8. THE APPEAL STAND PARTLY ALLOWED FOR STATISTICAL PURPOSES IN TERMS OF OUR ABOVE ORDER. ORDER PRONOUNCED ON 25 TH JANUARY, 2021. SD/- SD/- (MAHAVIR SINGH) (MANOJ KUMAR AGGARWAL) / VICE PRESIDENT / ACCOUNTANT MEMBER MUMBAI; DATED : 25/01/2021 SR.PS, JAISY VARGHESE / COPY OF THE ORDER FORWARDED TO : 1. #% / THE APPELLANT 2. &'#% / THE RESPONDENT 3. - ( ) / THE CIT(A) 4. - / CIT CONCERNED 5. ./& ) 0 , 0 , / DR, ITAT, MUMBAI 6. /123 / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.