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08. The learned dispute resolution panel noted in its direction dated 28/9/2018 passed in the name of Star India Private Limited [ Amalgamated company] that:-

i On 30th November, 2014 the assessee filed its original return of income in the name of Star Sports India Pvt. Ltd. for AY 2014-15 using the permanent account number of AAACE2334C which belonged to the non existing entity Star sports India private limited. The return was signed by one Mr Sanjay Gupta in the capacity of director of Star Sports India Private Limited, non-existent entity. This return of income was made as part of direction of the learned dispute resolution panel as annexure A. ii Subsequently a revised return was filed in the name of Star sports India private limited [ nonexistent entity] on 30/3/2016 which was signed by Mr Rishi Gaind who was a director in Star India private limited, amalgamated company. Thus Revised ROI is in the name of a nonexistent entity stating PAN of a nonexistent entity but signed by the director of the amalgamating company. iii Thus both the returns, original as well as the subsequent revised return was filed in the name of Star sports India private limited, using PAN of Star Sports India Private Limited , which is merged with Star India private limited on a date prior to the date of filing of the returns of income and since Star sports India private limited has ceased to exist after the amalgamation i.e. with effect from M/s. Kunnummakkara Service/Income Tax Officer, W(2)(2) 21/11/2014 , and as such no return of income could have been filed in the name of such a non existing person, the assessee was asked why these returns of income filed in the name of a non existing entity should not be treated as non- est and all consequences following accordingly. iv Assessee explained that the tax returns were filed in the name of Star sports India private limited as it could not have filed the tax return in the name of Star India private limited because the income tax department filing portal would not have allowed Star India private limited to file two original tax returns i.e. One for Star sports India private limited and second for Star India private limited under one permanent account number and one name. It was further submitted that for the period 1 April 2013 - 3 November 2013 one return was filed in the name and permanent account number of Star sports India private limited. Therefore the tax returns were filed in the name and permanent account number of Star sports India private limited owning to practical challenges and difficulties and to duly comply with the provisions of the income tax act 1961 in true letter and spirit. Further assessee submitted that it has informed respective authorities about the fact of amalgamation in time. It was further stated that the above tax return should not be treated as Non est as the refund claimed in revised tax return needs to be granted to it. The assessee took shelter under article 265 of the Constitution of India stating that no tax is to be levied/collected except by authority of law and further reliance on circular number 14 dated 11 April 1955 was placed.

M/s. Kunnummakkara Service/Income Tax Officer, W(2)(2) v The learned DRP held that the issue cannot be decided on the basis of any practical difficulties in filing of return of income but within the four corners of the law. According to them the company is a juristic personality which not only comes into existence by operation of law but it cessation also takes place by operation of law. It further held that the original return was filed after the amalgamation in the name of amalgamating company i.e. Star sports India private limited and was also signed by the director of that company prior to amalgamation. Thus despite the fact of amalgamation, the return of income was filed in the name of amalgamating company and duly verified by the director of amalgamating company. Therefore the filing of income tax return and verification by the person who was director prior to the amalgamation was not proper and invalid and therefore the return of income filed by the company which did not exist on the date of filing of the return has to be treated as non est. Accordingly the return of income filed on 30/11/2014 was treated as Non est. The LD DRP further noted that the subsequent revised return was also filed in the name of Star sports India private limited, a non- existent company but was signed by the director of Star India private limited i.e. amalgamated company filed in the name of a non existing person has also to be treated as non- est. The learned DRP was also of the view that revised return can be filed only when there is a valid original return. As the original return itself has held to be not valid, the revised return also is not valid. The learned DRP further noted that despite amalgamation on 21/11/2014 the M/s. Kunnummakkara Service/Income Tax Officer, W(2)(2) audit report was prepared in the name of amalgamating company and was also signed by the director of amalgamating company using the seal of amalgamating company. This was attached as annexure C to the direction. The DRP was of the opinion that even audit could not have been made on a non existing person as no action could be taken by anybody on behalf of a non existing person. Therefore signing the audit report in the name of a non-existent company as a consequence of merger was also invalid. It relied on several judicial precedents. Accordingly the return and the revised return filed by the assessee were considered as non-est. vi The ld DRP on the draft order clearly held that as the draft order and T P order is passed on a nonexistent entity, is bad in law, null and void ab intio.

xv All the judicial precedents cited by the LD AR were perused and in none of the decision, it was held that when the ROI is filed in the name of the dead person i.e. a nonexistent person LD AO is required to give any notice of removal of such defect. xvi It would be a dichotomy, if the ROI filed by the assessee in the name of non existing entity is considered as valid return and assessment order passed by the LD AO on such nonexistent entity on the basis of such ROI is held to be invalid. Rules of the assessment cannot be different for the assessee and AO. Thus, the ROI filed in the name of nonexistent entity as well the Assessment order passed in the name of the nonexistent entity were correctly held by the ld DRP as non est and invalid respectively, correctly.

xvii Thus according to us, Original ROI as well as Revised ROI filed are returns which are correctly treated as Non est i.e., deemed never to have filed such ROI.

xviii So far as the draft Assessment order is concerned, as it was passed in the name of a nonexistent entity, it is correctly quashed by the ld DRP.

xix Now the issue arises that whether the assessee is entitled to refund of taxes paid. We find that , no doubt an assessment order is passed by the ld AO where in the income of the assessee is accepted as income from business or profession of M/s. Kunnummakkara Service/Income Tax Officer, W(2)(2) Rs (-) 22,13,34,792/- and income from other sources is Rs 69292952/-. Thus ld AO assessed the total income of the assessee at Rs (-) 15,20,41,840/-. According to section 199 of the Act for credit of tax deducted at source made according to the provisions Chapter XVII and paid to the Central Government shall be treated as a payment of tax on behalf of the person from whose income the deduction was made. Assessee has admitted tax liability of Rs 2,41,42,849/- and TDS of Rs 46,31,75,516/-. Thus Refund of Rs 43,90,32,670/- was due. Therefore, when the ld AO has assessed assessee at the income of Rs (-) 15,2041,840/- then , he is duty bound to compute the tax liability considering the provision of section 199 of the Act and if the tax is due same is recoverable and if any refund is due same should be granted.