TMI Blog2010 (1) TMI 753X X X X Extracts X X X X X X X X Extracts X X X X ..... ngth of s. 139(5) of the IT Act. - Revenue directed to consider the returns filed in terms of the scheme sanctioned by this Court effective from 1st Jan., 2004. - Decided in favor of assessee. - 330 and 331 of 2009 and 332 and 333 of 2009 - - - Dated:- 11-1-2010 - Chitra Venkataraman, J. P.M. Arvindh Pandian for the Applicant J. Narayanasamy for the Respondent ORDER Chttra Venkataraman, J:- 1. Company Appln. No. 330 of 2009 is filed to direct the respondent to implement cl. 7.2 of the scheme sanctioned by this Court vide order dt. 12th Oct., 2004/8th Nov., 2004 in Company Petn. No. 167 of 2004 and dt. 29th Nov., 2007 in Company Appln. No. 2975 of 2007 w.e.f. 1st Jan., 2004 as per cl. 1.2 of the scheme for effectively implementing the sanctioned scheme and accept to the revised returns for the asst. yrs. 2001-02, 2002-03, 2003-04 and 2004-05 filed by the applicant. 2. Company Appln. No. 331 of 2009 is to grant injunction restraining the respondent from taking any further action against the applicant in respect of the revised returns for the asst. yrs. 2001-02, 2002-03, 2003-04 and 2004-05 pending disposal of the application for implementation of cl. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earlier. Learned standing counsel appearing for the Revenue, placing reliance on the abovesaid provisions, pointed out that the question of acceptance of the revised returns filed by the petitioner did not arise in this case. Quite apart, from that, at the time of completion of scrutiny of the assessment for the asst. yr. 2004-05 on 28th Dec., 2006, the revised return was not filed by, the assessee and the same was filed only on 12th Jan., 2007. It is further stated that the order of the appellate authority dt. 11th Jan., 2008 in the case of M/s Pentamedia Graphics Ltd. is not accepted by the Revenue for granting relief to the petitioner as the same has been appealed against relying on the apex Court decision reported in CIT vs. Sun Engineering Works (P) Ltd. (1992) 107 CTR (SC) 209 : (1992) 198 ITR 297 (SC). In the abovesaid circumstances, learned standing counsel for the respondent submits that guided by the provisions of ss. 139(5) and 148 of the IT Act, the returns filed by the petitioner had been rightly rejected and the assessment was completed. The case of the petitioner is not supported by any provision of law. 7. It is seen from the order passed by this Court dt. 29th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the modified scheme too. Clause 1.6 in the original scheme as well as in the modified scheme defines 'effective date' to mean the last of the dates on which the sanctions, approvals or orders specified in cl. 7.6 under the original scheme and the modified scheme remained the same and it reads as follows:- "7.6 The scheme is conditional upon and subject to its being sanctioned by the Hon'ble High Court of judicature at Madras and certified copies of the orders sanctioning the scheme being filed with the RoC, Tamil Nadu, Chennai. The Scheme shall become operative on the date or the last of the dates on which the certified copies of the orders of the Hon'ble Court sanctioning the Scheme are filed by PMGL, MDL, KSSEL, Intelivision and Mayajaal with the RoC, Tamil Nadu, Chennai. Such date shall be known as the effective date." Appointed date defined in cl. 1.2 is as follows:- '"Appointed date" means the 1st day of January, 2004 or such other date as may be approved by the Hon'ble High Court of judicature at Madras or if the Boards of directors of the transferor companies and the transferee company require any other date subsequent to 1st Jan., 2004 and/or the High Court of j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a speaking order. 13. It is further seen from the letter dt. 26th Dec., 2007 that the applicant herein, through its chartered accountant, pointed out to the assessing authority, the notice issued on 18th Jan., 2007 that since certain amendments were required in the scheme of amalgamation, approved by this Court on 8th Nov., 2004, the company had gone for modification of the scheme and presented the same to this Court for approval of the modified scheme. This Court passed an order on 29th Nov., 2007 giving its approval to the modified scheme of amalgamation. The order copy was made available on 17th Dec., 2007 and received by the assessee company on 20th Dec., 2007. Enclosing the copy of the order, the applicant submitted that the revised returns for the year 2004-05 could be filed only after the entire scheme as approved by this Court was given effect to. Consequently, the applicant enclosed the revised returns indicating the loss of the amalgamating companies available for set off at the hands of the applicant. In the circumstances, the applicant sought for completion of the assessment based on the revised returns. 14. In the face of the assessing authority refusing to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall take place. In the decision, the Supreme Court pointed out thus:- "Every scheme of amalgamation has to necessarily provide a date with effect from which the amalgamation/transfer shall take place................ It is true that while sanctioning the scheme, it is open to the Court to modify the said date and prescribe such date of amalgamation/transfer as it thinks appropriate in the facts and circumstances of the case. If the Court so specifies a date, there is little doubt that such date would be the date of amalgamation/date of transfer. But where the Court does not prescribe any specific date but merely sanctions the scheme presented to it as has happened in this case it should follow that the date of amalgamation/date of transfer is the date specified in the scheme as 'the transfer date'. It cannot be otherwise. It must be remembered that before applying to the Court under s. 391(1), a scheme has to be framed and such scheme has to contain a date of amalgamation/transfer. The proceedings before the Court make take some time; indeed, they are bound to take some time because several steps provided by ss. 391 to 394A and the relevant rules have to be followed and compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of law. 20. As far as the amalgamation order is concerned, the petitioner reserved the right to revise the IT returns relating to TDS certificates. Learned counsel for the petitioner pointed out that the petitioner had already placed before the concerned authority as to the filing of the revised returns and the orders passed by this Court, particularly last of the order in modifying the scheme dt. 29th Nov., 2007, received on 17th Dec., 2007. 21. Learned standing counsel appearing for the Revenue, however, submitted that the original assessment order was passed even much before this date and the revised returns filed must satisfy the provisions of s. 139(5) of the IT Act. As regards the order granting sanction of the scheme is concerned, there is no dispute that the scheme is effective from 1st Jan., 2004. That being so, the contention of the respondent based on s. 139(5) of the IT Act as regards the non-filing of revised return before the expiry of one year from the end of the relevant period on or before the expiry of the year, whichever is earlier, needs to be considered. In this connection, the principle laid down by the Supreme Court in the decision reported in Marsh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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