TaxTMI 
TaxTMI 
TaxTMI 
2022 (7) TMI 1406
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....levant for adjudication of the instant appeal, are that the Assessee had filed an application on dated 23.07.2012 before the Hon'ble AAR for Ruling on the issue of liability of deduction u/s. 54F of the Act qua Rs.24,72,86,100/- invested for the purchase of residential house in foreign out of sale proceeds of the residential house in India. Though the Assessee did not file any return of income u/s. 139 of the Act, however, lateron filed its return of income on dated 02.01.2015 in response to the notice dated 29.12.2014u/s. 148 of the Act, issued by the Assessing Officer, whereby the Assessee had declared income of Rs.55,48,95,950/- and claimed the refund of Rs.5,15,63,080/-. 2.1 The Hon'ble AAR vide its order dated 22.12.2017 allowed the d....
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....llant has challenged the order u/s. 154 dated 27.09.2018 on the following grounds: (i). No application filed by Appellant under section 154 of the Act was pending for disposal on date of impugned order; (ii) No show cause notice u/s 154(3) was issued proposing to reduce the refund already determined; (iii) Impugned order passed wrongly referring to Application dated 23.03.2018 filed by Appellant which was already disposed off vide order dated 28.03.2018; (iv) There is no mistake which was obvious, patent not requiring application of Mind, constituting Mistake Apparent from Record to enable assumption of Jurisdiction; 5.3 Perusal of order u/s 154 of the Act dated 27.09.2018 shows that the AO has rejected the claim of refund be....
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....ng a refund or otherwise increasing the liability of the assessee, shall not be made under this section unless the authority concerned has given notice to the assessee of its intention so to do and has allowed the assessee a reasonable opportunity of being heard". 5.7 Since the AO has not complied with the provisions of section 154(3), therefore, the rectification order dated 27,09.2018 does not hold good in the eyes of law. Accordingly, the AO is directed to allow opportunity to the assessee to decide on the issue of rectification application." 3.3 The Assessee, being aggrieved with the impugned order, has preferred the instant appeal. 4. Heard the parties and perused the material available on record. Ld. AR at the outset by raising ....
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....ower authority. However as per the provision of section 251(1)(c), the ld. Commissioner is fully empowered to pass such order(s)which include remanding the case/issue to the authority below, in appeal as he thinks fit, in any other case which is not covered under sub-clause (a), (aa) and (b) of sub-section (1) of section 251 of the Act. The decision referred to by the Assessee is factually dissimilar as the same pertains to appeal against the Assessment order but not against any other order as involved in this case. Hence, the preliminary objection/contention of the Assessee is untenable being misconceived and having no substance, resultantly rejected. 4.1 The Assessee also raised the issue that at the time of passing the order dated 27.09....
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....case and find that the Assessee in response to the notice dated 29.12.2014 u/s. 148 of the Act, filed its ITR on dated 02.01.2015, which was accepted by the Assessing Officer by passing the order dated 26.02.2018 u/s. 147/143(3) of the Act and the liability of tax was determined to the tune of Rs.11,42,39,474/- which was allowed to be credited from the advance tax of Rs.16,58,02,551/-deducted at source. However, the Assessing Officer did not issue the refund. Therefore, the Assessee vide application dated 23.03.2018u/s. 154 of the Act, sought rectification of the assessment order 26.02.2018 passed u/s. 147read with section 143(3) of the Act, and prayed for issue of refund of Rs.5,15,63,080/-. 4.3.1 The said application was disposed of by t....
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....e same cause. 4.3.5 We observe even otherwise section 154 of the Act mandates that 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 person(s) referred above of its intention to doso and has allowed a reasonable opportunity of being heard. The rule of 'Audi laterampartem' says 'hear the other side'. If the order is passed by the authority without providing notice or the reasonable opportunity of being heard to the person affected by it, if mandatorily required under the statute, then the same would be invalid and liable to be....