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2021 Supreme(Guj) 640
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SONIA GOKANI, RAJENDRA M. SAREEN, JJ.
DEEP ENERGY RESOURCES LIMITED - Appellant
Versus
ADDITIONAL/JOINT/DEPUTY/ASSISTANT COMMISSIONER OF INCOME TAX/INCOME TAX OFFICER - Respondent
SPECIAL CIVIL APPLICATION NO. 11919 of 2021
Decided On : 29-09-2021
For The Appellant : MR B S SOPARKAR
For The Respondent: MRS MAUNA M BHATT
Point of Law: Assessment which has been finalized shall need to be quashed permitting the respondent to process considering the revised return which has been filed by the petitioner.
Headnote:
Constitution of India,1950 – Article 226 - Income Tax Act, 1961 – Section 129,139(5),143(1) and 142(1) – Tax – Income tax of oil - Deep Industries Limited was having business of Oil and Gas exploration and production and oil and Gas Services - It decided to demerge its Oil and Gas services business scheme of arrangement was formulated and a company application was moved before National Company Law Tribunal scheme of arrangement was sanctioned with appointed Certified copy of the scheme was received and same was filed with Registrar of Companies - Petitioner then Deep Industries Limited had filed original return of income for Assessment where Scheme of Arrangement was not sanctioned by NCLT return of income was filed successfully online and on sanction of scheme being effective erstwhile Deep Industries Limited’s assets, liabilities, incomes, etc. were deemed to be that of Deep CH4 Limited later named as Deep Industries Limited- petitioner herein.
Finding of the Court:
Section 119 of the IT Act in such matters also would not be applicable and therefore, the least respondent authority could have done was to permit revised return. When the respondents have geared up to operate in the regime of electronic and faceless mode for conducting all its operations including the filing of returns document, hearing and assessment, it shall need to improvise the software and closely examine the difficulties experienced by the tax payers because of the limitation of the softwares which can easily be corrected to allow the revised return more particularly, when the law has been made quite clear by virtue of the direction of the Apex Court.
Result: Petition is allowed and disposed of
ORDER :
SONIA GOKANI, J.
1. Petitioner is before this Court under Article 226 of the Constitution of India challenging the action of the respondent No.2 of not accepting the revised return of the petitioner for the Assessment Year 2018-19 in violation of Section 129 of the Income Tax Act, 1961 (‘the Act’ hereinafter).
2. Brief facts leading to the present petition are as follow:
2.1 The Deep Industries Limited was having business of Oil and Gas exploration and production and oil and Gas Services. It decided to demerge its Oil and Gas services business therefore a scheme of arrangement was formulated and a company application was moved before the National Company Law Tribunal (‘the NCLT’ hereinafter). The scheme of arrangement was sanctioned on 17.03.2020 with appointed date 01.04.2017. Certified copy of the scheme was received on 26.05.2020 and the same was filed with the Registrar of the Companies on 20.06.2020.
2.2 The petitioner-the then Deep Industries Limited had filed original return of income for Assessment Year 2018- 19 on 30.03.2019 where the Scheme of Arrangement was not sanctioned by the NCLT at Rs.97,78,24,690/-. The return of income was filed successfully online and on the sanction of the scheme being effective from 01.04.2017 the erstwhile Deep Industries Limited’s assets, liabilities, incomes, etc. were deemed to be that of Deep CH4 Limited later named as Deep Industries Limited-the petitioner herein.
2.3 The petitioner sought to file the revised return for Assessment Year 2018-19; however, the time for the same has lapsed. There was no mechanism to file it online.
2.4 The petitioner raised grievance on income tax portal on 26.06.2020 via e- Nivaran facility. Therefore, it physically filed revised return along with the letter dated 28.07.2020 explaining the cause of revision. 2.5 It is lamented by the petitioner that the respondent no.2 did not process the revised return of income filed by the petitioner and has passed the Assessment Order in case of Deep Energy Resources on 04.05.2021, the erstwhile Deep Industries Limited, on the protective basis adding Rs.102,08,97,103/-.
2.6 This is a major grievance on the part of the petitioner. According to whom, by the time, NCLT passed the order, the time limit to file the revised return under Section 139(5) of the Act had expired and it was not possible for the petitioner to file the revised return online and though it had attempted to so do it, it was not permitted and this approach on the part of the respondent is sought to be challenged.
2.7 The petitioner has relied on the decision of the Apex Court rendered in case of DALMIA POWER LIMITED VS ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-1, TRICHY, reported in (2020) 420 ITR 339 (SC) with the following prayers:
“7… Hon’ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, direction or order and be pleased to:
(a) quash and set aside the impugned order at Annexure-’A’ to this petition;
(b) pending the admission, hearing and final disposal of this petition, to stay implementation and operation of the order at Annexure-’A’ to this petition and stay recovery of tax for A.Y.2018-19;
(c) any other and further relief deemed just and proper be granted in the interest of justice; (d) to provide for the cost of this petition.”
3. Affidavit-in-reply is filed by the Deputy Commissioner of Income Tax, Circle 1(1)(1). According to whom, the original return of income was of 25.09.2018 and the revised return was filed on 28.07.2020 manually and physically. As per the Board Circular, all returns are to be filed electronically, hence the revised return was invalid.
4. The case of Deep Energy Resources was selected for scrutiny through Computer Assisted Scrutiny Selection (CASS) and notice under Section 143(2) had been issued to the Assessee on 22.09.2019. After following the due procedure of law mandated in the Act, all statut
