TaxTMI 
TaxTMI 
TaxTMI 
2016 (7) TMI 332
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....ect return of their total income in respect of those two years within a period of 15 days from the date of service of notice. The petitioner had filed their return of income on 09.11.2011, declaring the total income as NIL . Subsequently, notices under Section 143(2) and 142(1) of the Act, were issued for the assessment years 2010-11, and 2011-12. 2. The first respondent passed the assessment orders dated 28.03.2013, for the assessment year 2010-11 under Section 143(3) read with Section 153A of the Act and for the assessment year 2011-12 under Section 143(3) of the Act. The first respondent came to the conclusion that amounts were diverted to interested parties and hence, the petitioner becomes ineligible for exemption under Section 11/10(23C) of the Act. The petitioner has preferred appeals as against the assessment orders before the fourth respondent on 22.04.2013 and subsequently, filed stay application before the Assessing Officer/first respondent under Section 220(6) of the Act on 26.04.2013. The prayer for stay was rejected by the first respondent by order dated 07.05.2013. The petitioner filed an application for stay before the second respondent dated 13.05.2013. The ....
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.... educational activity. Placing reliance on certain decisions of the Hon'ble Supreme Court and this Court, it was claimed that the collection of capitation fee or higher amount of fees cannot be a basis to cancel the registration under Section 12AA or withdraw the approval granted under Section 10(23C)(vi) of the Act. The details pertaining to the assessment orders passed for the relevant years and the pendency of the appeal before the Appellate Authority were set out in the reply, that apart, various factual issues were pointed out. 4. The fifth respondent after affording an opportunity of hearing, which appears to have prolonged for more than one year, passed the order dated 18.11.2014, withdrawing the approval granted and holding that the petitioner would not be eligible for exemption under Section 10(23C)(vi) of the Act. 5. Earlier by notice dated 28.10.2014, the petitioner was called upon to show cause as to why penalty should not be levied under Section 221(1) of the Act. The petitioner submitted their reply on 19.11.2014, wherein among other things, it was stated that no order making an assessment shall be made by the Assessing Officer without giving effect to the provi....
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....e order cancelling the exemption granted. The fifth respondent has assigned reasons as to why he has come to such conclusion. While, the matters stood thus by corrigendum, dated 22.01.2015, the first respondent stated that while passing the assessment order for the assessment year 2010-11 in the preface column (10) the section and sub-section under which the assessment is made , it was erroneously mentioned as Section 143(3) read with Section 153A of the Act instead of Section 144 of the Act, as the assessment was actually made under Section 144 of the Act, as brought out in para 4 of the assessment year. Therefore, the first respondent stated that the error, which is apparent from the record is corrected and the assessment order for the assessment year 2010-11, dated 28.03.2013, shall read as an order passed under Section 144 of the Act. Similar corrigendum was issued for the assessment year 2011-12. The petitioner has filed these Writ Petitions challenging the said corrigendums. 9. Mr.P.S.Raman, learned Senior counsel appearing for M/s.Subbaraya Aiyar Padmanabhan & Ramamani, learned counsel for the petitioner submitted that the first proviso to Section 143(3) of the Act ma....
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....g appeals over the orders of assessment and the present attempt of the petitioner is only to drag on the proceedings and to prevent the Commissioner (Appeals) from completing the appeals, which are pending since 2013. It is further submitted that the assessment orders are admittedly, best judgment assessments under Section 144 of the Act and the findings recorded in both the orders more particularly in paragraph 4 therein clearly show that the assessments were made under Section 144 of the Act and therefore, the Assessing Officer was well within his jurisdiction to issue the impugned corrigendum. 12. To substantiate such contention, the learned counsel submitted that statutory notices and summons under Section 131 of the Act were issued to the petitioner, but there was no effective response and in this regard for the assessment years 2010-11, notice dated 17.10.2011 was issued under Section 153A, notice dated 17.09.2012, under Section 143(2), notice dated 01.11.2012, under Section 142(1), notice dated 12.02.2013, under Section 143(2), summons issued under Section 131, dated 04.03.2013, along with notice under Section 142(1), dated 12.02.2013. For the assessment year, 2011-12, noti....
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....ntention of the Department that the corrigendum was issued invoking power under Section 154 of the Act, then the petitioner ought to have been issued a notice under Section 154(3) of the Act and then opportunity of being heard ought to have been given. 14. In reply to this submission, the learned Standing counsel for the Department that sub-section (3) of Section 154 of the Act would stand attracted only if an amendment, which has the effect of enhancing the assessment or reducing a refund or otherwise increasing the liability of the assessee and in the instant case, the mistake which has been rectified is in the preamble portion of the order and there is no other change in the assessment orders. 15. The learned Standing counsel has circulated the original files duly flagged to substantiate the contention that the petitioner did not co-operate in the assessment proceedings and the assessment orders are indeed best of judgment assessments. 16. I have elaborately heard the learned counsels appearing for the parties and carefully perused the materials placed on record as well as have gone through the original files circulated by the learned Standing counsel for the respondents. 17....
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....without giving effect to the provisions of Section 10(23)(vi), unless he has intimated the Central Government or the prescribed authority, the contravention of the provision of Section 10(23)(vi) and only after such approval granted, has been withdrawn, he could have proceeded to deny the benefit of exemption. This point is canvassed by the petitioner in the appeals, which are pending before the Commissioner of Income Tax (Appeals)-II, which were filed on 22.04.2013. That apart, this issue was canvassed by the petitioner while submitting their reply, dated 19.11.2014, to the notice issued under Section 221(1), dated 28.10.2014. Thus, while testing the correctness of the assessment orders dated 28.03.2013, the Commissioner of Income Tax (Appeals), would have to necessary render a finding on this issue. Therefore, this Court refrains from considering the same, as it may prejudice the rights of parties in the pending appeals. In such circumstances, it would be necessary to examine as to whether the petitioner should be permitted to canvass the effect of the impugned corrigendums on the assessment orders. For doing so, it has to be seen as to whether the assessment orders are bes....
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....rror apparent on the face of record occurring in Order 47 Rule 1 CPC. In ITO vs. Bombay Dyeing & Mfg., Co., Ltd., reported in 1968 (68) ITR 760 (SC), the Supreme Court observed that the former covers all mistakes discoverable from a perusal of the whole evidence in the case, or from an omission to apply certain provisions of the Act to the facts of the case, or a mistake due to an overlooking of certain aspects of the case, or a mistake arising on account of a wrong construction of any provisions of the Act. 25. The Hon'ble Supreme Court in the case of Sankappa (S) vs. ITO reported in (1968) 68 ITR 706 (SC) observed that what the Assessing Officer does, is to correct errors in or rectify the orders of assessment made by him and orders making such corrections or rectification or, therefore, clearly part of the proceedings for assessment. 26. The first respondent has issued the impugned corrigendum in exercise of powers under Section 154 of the Act and it has to be seen whether notice is required to be issued to the petitioner in terms of sub-section (3) of Section 154 of the Act. The stand taken by the first respondent is that such notice is required to be issued o....