2019 (10) TMI 606 - HC - Income Tax

Maintainability of Revision application u/s 263 - application dismissed on the ground that the Petitioner has remedy to file an appeal against the assessment order but dismissed it on merits - HELD THAT - Deduction on account of stamp duty paid and other expenditure incurred in relation to transfer was not claimed in the return of income, the same could be urged before the Commissioner of Income Tax in the revision application. Thus, without considering the above submission, the impugned order holds that if claim is not made in the return of income, then it is not possible to urge the same before the revisional authority. In the above view, we are inclined to set aside the impugned order and restore the proceedings back to the file of the Commissioner of Income Tax. So far as objection of the Revenue is concerned, we find no merit therein. The Act itself provides remedy of revision from the order of assessment. Therefore, when the assessee chooses the remedy provided under the Act, then the Revenue cannot hold it against the assessee. In the present case, the revision application has not been dismissed by the authority on the ground that the Petitioner has remedy to file an appeal against the assessment order but dismissed it on merits. The impugned order dated 8 March 2019 passed by the Commissioner of Income Tax is set aside and the revision application is restored to the file of the Commissioner of Income Tax for fresh disposal.

Summary

Issues:
Challenge to order under section 264 of the Income Tax Act, 1961 regarding assessment year 2010-11.

Analysis:
The petition challenges the order dated 8 March 2019 passed by the Commissioner of Income Tax under section 264 of the Income Tax Act, related to the assessment year 2010-11. The Commissioner rejected the petitioner's revision application from the assessment order dated 31 October 2017. The petitioner contended that the impugned order did not address various submissions made on the merits of the reassessment, making it a non-speaking order. On the other hand, the Respondents argued that the petitioner should have filed an appeal against the assessment order instead of a revision application. However, no specific submissions were made by the Revenue to counter the petitioner's claim that the merits of the revision application were not considered by the Commissioner.

The Court found that the impugned order did not consider the petitioner's contention that even if certain deductions were not claimed in the return of income, they could be raised before the Commissioner in the revision application. The Court referred to a previous decision in support of the petitioner's argument. Consequently, the Court set aside the impugned order and directed the proceedings to be restored to the file of the Commissioner for fresh disposal.

Regarding the objection raised by the Revenue that the petitioner should have filed an appeal instead of a revision application, the Court held that the Act itself provides for the remedy of revision from the assessment order. Therefore, the Revenue cannot fault the assessee for choosing the remedy provided under the Act. In this case, the revision application was dismissed on merits, not on the ground of the availability of an appeal remedy. The Court emphasized that the Commissioner should decide the matter independently and in accordance with the law without being influenced by any previous observations.

In conclusion, the Court set aside the Commissioner's order and restored the revision application for fresh disposal, directing the Commissioner to decide the matter on its merits without any external influence. The writ petition was disposed of accordingly.