TMI Blog2024 (4) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... is this statutory requirement which has not been complied with as would be evident from the contents of paragraph No. 12 of the counter-affidavit (extracted above). Thus, we are of the firm view that the impugned order of rectification passed by the 1st respondent is in violation of the statutory provision of Section 15393) of the Act, and therefore, the same is unsustainable. Accordingly, the same is set aside. The Writ Petition stands allowed. - HONOURABLE SRI JUSTICE P. SAM KOSHY AND HONOURABLE SRI JUSTICE N. TUKARAMJI For the Petitioner : Mr. S. Ravi, Learned Senior Counsel, appearing on behalf of Mr. Naga Deepak, Learned Counsel. For the Respondents : Mr. K. Aroah, learned Standing Counsel, appearing on behalf of Mr. Vijay K. Punna, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As a consequence of the amalgamation, M/s. Apollo Bangalore Cradle Limited has got dissolved and the entire assets, properties, rights and liabilities to transfer got vested into M/s. Apollo Specialty Hospitals Private Limited. M/s. Apollo Bangalore Cradle Limited was a public company incorporated in the year 2011. The said company had filed its return for the Assessment Year 2016-17 on 14.10.2016 declaring loss to the tune of Rs. 3,04,88,510/-, consisting of both business loss of Rs. 81,86,153 and the absorbed depreciation of Rs. 2,23,02,357.00. The said amount was subjected to scrutiny under Section 143(3) of the Income Tax Act, 1961, and an order of Assessment was passed on 26.11.2018 making a disallowance of Rs. 43,90,141/- and re-compu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned order is violative of Section 154 of the Act or not. 6. Mr. S. Ravi, learned Senior Counsel, appearing on behalf of Mr. Naga Deepak, learned counsel for the petitioner, contended that though Section 154 empowers the authorities concerned for rectifying an error committed and the rectification ought to be carried within a stipulated period prescribed under the said section itself. According to the learned Senior Counsel, in terms of Sub-Section (3) of Section 154 it was mandatory on the part of the respondent-Department to have at least issued a show-cause notice before the order of rectification was passed. In view of the same, we proceed to decide this very issue at the threshold before we proceed to decide the other issues, if requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioners. This, according to him, in terms of Section 79 of the Income Tax Act, 1961 was not permissible, because there was a substantial change in shareholding pattern. When this error was detected, the respondent-Department has invoked the powers under Section 154 (2) of the Act. According to him, since it was the power which was conferred under Sub-Section (2), there was no requirement for the compliance as is envisaged under Sub-Section (3). He further contended that by way of the impugned order, there is no change in the tax liability upon the petitioner neither is in any manner the tax liability getting enhanced nor is the petitioner being held liable to pay any additional tax. It is only a case where there is disallowance of carryi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to its notice [by the assessee or by the deductor] [or by the collector], and where the authority concerned is the Commissioner (Appeals), by the Assessing Officer also. (3) An amendment, which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of [the assessee or the deductor] [or the collector], shall not be made under this section unless the authority concerned has given notice to [the assessee or the deductor] [or the collector] of its intention so to do and has allowed [the assessee or the deductor] [or the collector] a reasonable opportunity of being heard. 11. If we peruse the aforesaid provision of law, it would be evidently clear that Sub-Sections (1) (2) both reflect the powers wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, it is in that situation Sub-Section (3) of Section 154 stipulates issuance of notice and an opportunity of hearing. The said Sub-Section (3) otherwise has a mandatory force of law and it is this statutory requirement which has not been complied with as would be evident from the contents of paragraph No. 12 of the counter-affidavit (extracted above). 14. Thus, we are of the firm view that the impugned order of rectification (Annexure P. 1) dated 27.03.2023 passed by the 1st respondent is in violation of the statutory provision of Section 15393) of the Act, and therefore, the same is unsustainable. Accordingly, the same is set aside. The Writ Petition stands allowed. No costs. 15. Since the impugned order is getting quashed only on ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
