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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.

v He also submitted that the assessee has also filed revised return on 30th March, 2016 after amalgamation. He submitted that though the above return was filed by the Director of Star India Pvt. Ltd. but in the name of Star Sports India Pvt. Ltd. for the impugned assessment year because of technical difficulties. Therefore despite assessee making all efforts the assessee could not name the assessable entity as Star India Pvt. Ltd. In view of this he submitted that the assessment order passed by the AO and transfer pricing order passed by the TPO, both are invalid as it has been passed on a non-existent person and therefore to be quashed. vi He further submitted that the assessee has claimed refund of Rs.44,24,95,990/-, The DRP held that as there is no valid return available/filed by the assessee there is no authority available with the AO or the DRP to grant refund. He submitted that the return of income filed by the assessee on 30th March, 2016 is a valid return. Further if the return filed by the assessee is found to be defective in any manner, the prescribed procedures under section 139(9) of the Act is laid down. He relied upon several judicial precedents that without following that procedure the return of income filed by the assessee cannot be treated as invalid. He submitted that the refund must be granted to the assessee as per the provisions of section 240 of the Act and accordingly treating of the validly filed return as invalid return without following the procedure of section 139(9) of the Act with the sole M/s. Kunnummakkara Service/Income Tax Officer, W(2)(2) intention of denying refund to the assessee is not justified. He extensively referred to his factual paper book filed containing 13 documents, supplementary factual paper book adding one more document and also a legal paper book referring to 9 different judicial precedents on validity of revised return, provisions of section 139(9) and section 240 of the Act. He also referred to the decision of the Coordinate Bench in case of Fed Express Transportation And Supply Chain Services (India) Private Limited versus Deputy Commissioner Of Income Tax 108 taxmann.com 542 as well as the decision of the Hon'ble Bombay High Court in the case of International Air Transport Association vs. DCIT 68 taxmann.com 46. With respect to his submission that the valid revised return of income curing any defects cannot be ignored, he relied upon the decision of the honourable Bombay High Court in the case of prime securities Ltd versus Varinder Mehta (2009) 317 ITR 27 wherein the return verified by the company secretary was held to be not amounting to a mere irregularity but are defective return which can be cured. He further relied upon the decision of the honourable Delhi High Court in case of CIT versus Haryana sheet glass Ltd 318 ITR 173 wherein the revised return was delayed and was also signed by the secretary holding that it was a curable irregularity and when the managing director signed and filed revised return it should relate back to date when original return was filed under signature of company secretary. He further referred to the decision of the honourable Delhi in High Court Bharat Nidhi Ltd versus CIT 306 ITR 230 wherein once again the original M/s. Kunnummakkara Service/Income Tax Officer, W(2)(2) return filed by it secretary but not by the managing director was held to be defective return which can be cured. He further relied upon the several judicial precedent to show that the defective return of income is a curable defect under section 139 (9) read with section 292 of the act and to declare ROI as invalid, procedure under section 139(9) is required to be followed. For this proposition he relied upon the decision of the honourable Calcutta High Court in case of Hoogly Mills Ltd versus ACIT 253 ITR 296 wherein the return not accompanied with the form number 30 was held to be defective return which can be cured. It was held that it is for the department concerned to scrutinise it and if it is found as defective, such defect should be asked to be cured instead of rejecting the said return as being invalid under section 139 (5) and (9). He further relied upon the decision of the honourable M P High Court in case of MP State Agro industries development Corporation Ltd versus CIT 274 ITR 582 wherein on filing of tax audit report along with the return of income was held to be a curable defect. In that case the defect could not be removed within allowed time of 15 days and assessee asked for the extension of time which was not accepted. The defect was cured letter on. The honourable High Court held that the return of income filed by the assessee could not be treated as invalid as the learned assessing officer should have extended time. He further submitted that the refund must be granted to the assessee under section 240 of the act read with article 265 of the Constitution of India for the reason that no tax can be collected without authority of law. He further relied upon the M/s. Kunnummakkara Service/Income Tax Officer, W(2)(2) judgement of the honourable Karnataka High Court in case of K Nagesh versus ACIT 376 ITR 173, wherein the revised return filed by the assessee was declared invalid and therefore tax and interest amount offered by the assessee based on such elevated invalid return was held to be refundable to the assessee. For this proposition he further referred to the decision of the honourable madras High Court in case of Dr Tirupatty Reddy versus ACIT 410 ITR 186 where the assessment was nullified and only tax deposited by the assessee in excess of what was declared by it on its own in return of income was held to be entitled to be refunded to the assessee. He further referred to the decision of the honourable allowable High Court in case of Harihar Nath Agarwal private family trust versus ACIT 264 ITR 612 wherein the assessment order was time barred, the revenue was directed to refund amount of tax paid to the assessee.

v There is no provision in the income tax Act to claim refund by filing non est return. Only option with the assessee is to approach CBDT.

13. Ld DR submitted on the Appeal of The ld AO that Assessee has filed ROI in the name of Dead company Star Sports India Private Limited signed by its Director and using its PAN originally. The Revised ROI is also in the name of Dead person, so unless the action of assessee is wrong action of ld AO in passing Draft assessment order and TP order cannot be held to be invalid. He referred to the directions of the DRP wherein it has been stated that the return of income filed by the assessee is invalid. The objections of the assessee are also dismissed in limini. The direction of the DRP is binding on the AO. Therefore refund cannot be granted. He referred to the provisions of Section 139(9) of the Act and stated that the revised return can be filed only in the case when a person discovers any omission or any wrong statement. Therefore, the revised return filed by the assessee is also not valid.