Sec. 139(5) not applicable if revised ITR is filed pursuant to scheme approved by NCLT
Where the scheme of amalgamation is approved by the National Company Law Tribunal under Section 391 of the Companies Act permitting the respective petitioners to file a revised return of income, even beyond the prescribed period, the same is binding on the income tax authorities even if the revised return of income has been filed beyond the prescribed period as stipulated under Section 139(5) of the Income Tax Act, 1961.
Sec. 139(5) not applicable if revised ITR is filed pursuant to scheme approved by NCLT
The Complete Order is given below:
The points for consideration in these Writ Petitions are as follows:
a) Whether the scheme of amalgamation approved by the National Company Law Tribunal under Section 391 of the Companies Act permitting the respective petitioners to file a revised return of income, even beyond the prescribed period is binding on the income tax authorities if the revised return of income has been filed beyond the prescribed period as stipulated under Section 139(5) of the Income Tax Act, 1961.
b) Whether the circular issued under Section 119(2)(b) of the Income Tax Act namely Circular No.9 of 2015 overrides the scheme of amalgamation approved by the National Company Law Tribunal under Section 391 of the Companies Act, permitting the respective petitioners to file the revised return of income after the due dates as prescribed under Section 139(5) of the Income Tax Act, 1961.
c) Whether Rule 12(3) of the Income Tax Rules, which requires filing of revised return of income electronically is mandatory and whether there can be exceptions to the said Rule.
2. These batch of Writ Petitions have been filed challenging the impugned orders of the respondent, recalling the notice under Section 143(2) of the Income Tax Act, for the following reasons:
a) The revised return of income was filed by the respective petitioners after the due date for filing of revised return of income without obtaining condonation of delay in filing the revised return from the appropriate authority as per Section 119(2) (b) read with CBDT Circular No.9 of 2015
b) The revised return of income was filed in manual form.
3. Brief facts leading to the filing of these Writ Petitions are as follows:
3.1. Dalmia Cement (Bharath) Limited has filed W.P. [MD]No.25318 of 2018 for the assessment year 2015-2016 and W.P. [MD]No.25317 of 2018 for the assessment year 2016-2017. “Dalmia Cement (Bharat) Limited, has entered into schemes of arrangement and amalgamation, with effect from the Appointed Date, i.e., 01.01.2015, which has been duly approved by National Company Law Tribunal [NCLT]. A brief factual matrix for A.Y. 2015-16 & A.Y. 2016-17 is tabulated as under:
| S. No. | Particulars | A.Y. 2015-16 | A.Y. 2016-17 |
| 1. | Filing of original Return of Income | 30.11.2015 | 30.11.2016 |
| 2. | Due date for filing revised Return of Income u/s 139(5) | 31.03.2017 | 31.03.2018 |
| 3. | Date of order of NCLT, Chennai along with Form CAA-7 | 20.04.2018 (Form CAA 7 dated 01.05.2018) | 20.04.2018 (Form CAA 7 dated 01.05.2018) |
| 4. | Date of filing of certified copy of order of NCLT with Registrar of Companies | 30.05.2018 | 30.05.2018 |
| 5. | Date of effectiveness of scheme by the Board of Directors of the company. | 30.10.2018 | 30.10.2018 |
| 6. | Date of filing revised Return of Income to give effect to approval of the scheme. | 27.11.2018 | 27.11.2018 |
3.2. Dalmia Power Limited has filed W.P.[MD]No.25314 of 2018 for the assessment year 2016-17 and W.P.[MD]No.25315 of 2018 for the assessment year 2015-16.
“Dalmia Power Limited has also entered into scheme of amalgamation, with effect from the Appointed Date, i.e., 01-01-2015, which has been duly approved by NCLT, Chennai. A brief factual matrix for A.Y. 2015-16 & A.Y. 2016-17 is tabulated as under:
|
Sl. No. |
Particulars |
A.Y. 2015-16 |
A.Y. 2016-17 |
|
1. |
Filing of original Return of Income |
17-09-2015 |
30-09-2016 |
|
2. |
Due date for filing revised Return of Income u/s 139(5) |
31-03-2017 |
31-03-2018 |
|
3. |
Date of order of NCLT, Chennai with corrigendum and Form CAA 7 |
16-10-2017 & 26-10-2017 (Form CAA 7 dated 20-10-2017) |
16-10-2017 & 26-10-2017 (Form CAA 7 dated 20-10-2017) |
|
4. |
Date of filing of certified copy of order of NCLT with Registrar of Companies |
17-11-2017 |
17-11-2017 |
|
5. |
Date of effectiveness of scheme |
17-11-2017 |
17-11-2017 |
|
6. |
Preparation of revised accounts of the petitioner company and duly getting the same audited |
25-10-2018 |
25-10-2018 |
|
7. |
Date of Tax Audit Report |
26-10-2018 |
23-11-2018 |
|
8. |
Date of filing revised Return of Income to give effect to approval of the scheme. |
27-11-2018 |
27-11-2018 |
4. According to the respective petitioners, the above facts were duly brought to the knowledge of the first respondent vide letter dated 25.11.2018, filed on 27.11.2018 for both the assessment years. According to the respective petitioners, although, the scheme of amalgamation was sanctioned for Dalmia Power Limited in November 2017, but only to ensure filing of return of income, the management took the conscious call to file the revised return of the amalgamated company that is Dalmia Power Limited along with Dalmia Cements (Bharat) Limited, at the same time so that proper effect is given to income and expenditure, credit of prepaid taxes. According to the respective petitioners, as per paragraph 64 (c) of the scheme of arrangement and amalgamation duly approved by National Company Law Tribunal, the respective petitioners were entitled to revise its return of income on the basis of the National Company Law Tribunal approved scheme of arrangement and amalgamation, even if the prescribed time limit for revising such returns have lapsed.
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