TMI Blog2004 (9) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... to pass an order under section 72A(1) of the Act and not under section 72A(3) thereof. - It is thus clear that there is a non-application of mind bu specified authority - the order passed by the specified authority is quashed - - - - - Dated:- 27-9-2004 - Judge(s) : B. C. PATEL., BADAR DURREZ AHMED. JUDGMENT The judgment of the court was delivered by B.C. Patel C. J.- In the second round of litigation, the petitioner, formerly known as Indian Explosives Limited and now known as ICI (India) Limited, has approached this court. Despite the direction given by a Division Bench of this court in its own case reported in IEL Ltd. v. Union of India [1992] 195 ITR 232 the specified authority under the provisions contained in the Income-ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ACCI." The Division Bench hearing the petition at page 243 of the report issued a direction in the nature of a writ of mandamus which is as under: "We, therefore, issue a writ of mandamus quashing the decision of the specified authority contained in the impugned order dated April 7, 1986, and we direct the said authority to reconsider the matter in the light of the observations made in this judgment and give a fresh recommendation by a speaking order within four months from today and the Central Government shall pass an order in consequence thereof within one month of the recommendation of the specified authority." In view of the direction aforesaid, the specified authority was required to examine the matter in the light of the observat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the following conditions are fulfilled, namely:- (a) the amalgamating company was not, immediately before such amalgamation, financially viable by reason of its liabilities, losses and other relevant factors; (b) the amalgamation was in the public interest; and (c) such other conditions as the Central Government may, by notification in the Official Gazette, specify, to ensure that the benefit under this section is restricted to amalgamations which would facilitate the rehabilitation or revival of the business of the amalgamating company, then, the Central Government may make a declaration to that effect, and, thereupon, notwithstanding anything contained in any other provision of this Act, the accumulated loss and the unabsorbed d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proposal in the form of a scheme of amalgamation to the specified authority. In this case, there is no dispute that the authority was moved after the amalgamation and, therefore, the authority was required to pass an order under section 72A(1) of the Act and not under section 72A(3) thereof. It is thus clear that not only is there a disobedience of the order made by this court but there is also a non-application of mind. The Division Bench earlier directed the special authority to reconsider the matter in the light of the observations and to give a fresh recommendation by a speaking order within four months from the date of the judgment. Not only that, there was a further direction to the Central Government to pass an order in consequence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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