Bombay High Court
Ebay International Ag vs Asst. Commissioner Of Income-Tax ... on 19 June, 2023
Author: K. R. Shriram
Bench: K. R. Shriram
2023:BHC-OS:5294-DB
1/3 412.WP-1314-2020.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1314 OF 2020
eBay International AG .....Petitioner
Vs.
Assistant Commissioner of Income Tax
(International Taxation), Circle - 2(2)(1) and Anr. .....Respondents
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Mr. Nishant Thakkar a/w. Ms. Jasmin Amalsadvala i/b. Lumiere Law
Partners for petitioner.
Mr. Suresh Kumar for respondents.
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CORAM : K. R. SHRIRAM AND
FIRDOSH P. POONIWALLA, JJ.
DATED : 19th JUNE 2023 P.C.:
1 Petitioner is impugning an order dated 30 th September 2019 passed under Section 154 of the Income Tax Act, 1961 (the Act) on the ground that before passing the impugned order no notice as mandatorily required under sub-section 3 of Section 154 of the Act was issued.
Sub-section 3 of Section 154 of the Act reads as under :
(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.
2 On 6th June 2023 Mr. Suresh Kumar requested the matter be stood over so that he can take instructions. On 13 th June 2023 Mr. Suresh Kumar informed the Court that he was still awaiting instructions and the matter was stood over to 19th June 2023. Today Mr. Suresh Kumar informed Gauri Gaekwad ::: Uploaded on - 21/06/2023 ::: Downloaded on - 22/06/2023 07:54:41 ::: 2/3 412.WP-1314-2020.doc that petitioner's allegation that no notice as required under sub-section 3 of Section 154 of the Act has been issued is correct. 3 Therefore, in our view, the impugned order dated 30th September 2019 has to be quashed and set aside. The same is hereby quashed and set aside.
4 That would leave prayer clause - (b) for us to consider, which reads as under :
(b) this Hon'ble Court may be pleased to issue a Writ of Mandamus or any other writ order or direction under Article 226 or 227 of the Constitution of India order and directing the Respondents to allow the TDS credit for Rs.8,36,834 and issue the Refund available to the Petitioner within the period of 1 month from the date of disposal of this Petition by this Hon'ble Court.
5 Sub-section 7 of Section 154 of the Act reads as under :
(7) Save as otherwise provided in section 155 or sub-section (4) of section 186, no amendment under this section shall be made after the expiry of four years [from the end of the financial year in which the order sought to be amended was passed.].
6 Mr. Thakkar states that the order sought to be amended was passed on 2nd December 2012. Mr. Thakkar further states that no amendment under Section 154 of the Act shall be made after the expiry of four years from the end of the financial year in which the order sought to be amended was passed, which would mean four years from 31 st March 2013. Therefore, the four years would end on 31st March 2017. 7 In the circumstances, since even the order dated 30th September 2019, which we have quashed and set aside, itself was Gauri Gaekwad ::: Uploaded on - 21/06/2023 ::: Downloaded on - 22/06/2023 07:54:41 ::: 3/3 412.WP-1314-2020.doc passed more than four years after the expiry of the financial year, on this ground we will have to hold that the said order could not have been passed. 8 We should also note that no reply has been filed opposing the petition though in the affidavit of service filed, it appears that the petition has been served way back in March 2020.
9 In the petition, it is averred that on 4 th November 2019 petitioner received an order dated 30 th September 2019 under Section 154 of the Act rectifying the order dated 2nd December 2012 wherein TDS credit of Rs.8,36,834/- was withdrawn on the ground that the provisions of Section 155(14) are not applicable and hence, the credit for TDS of Rs.8,36,834/- granted in the order dated 2nd December 2012 was incorrect. 10 Since we have quashed and set aside the order dated 30th September 2019 and have also found that the order under Section 154 of the Act could not have been passed since it is barred by limitation, the withdrawal of TDS credit of Rs.8,36,834/- is incorrect. Therefore, we also grant prayer clause - (b) as quoted above.
11 Petition disposed. No order as to costs.
(FIRDOSH P. POONIWALLA, J.) (K. R. SHRIRAM, J.) Gauri Gaekwad ::: Uploaded on - 21/06/2023 ::: Downloaded on - 22/06/2023 07:54:41 :::