2024 (6) TMI 885 - KERALA HIGH COURT

Revision u/s 264 - CIT rejected the application on the ground of delay and finding that the intimation u/s 143 (1) could not be treated as an order that was amenable to revision u/s 264 - Condonation of delay on filing revision application - HELD THAT - On a consideration of the rival submissions, while we were initially inclined to accept the submissions of the appellant, that the aspect of uniformity and fairness in taxation should outweigh the delay occasioned in preferring the revision petitions, we find ourselves unable to ignore the submissions for the Income Tax Department that it was the same aspect of delay/limitation that prevented the Department also from re-assessing the income of the appellant for the assessment years 2004-2005 and 2005-2006, respectively. We find that during the said years the appellant had declared the profit on the sale of shares as capital gains and had obtained the benefit of a lower rate of tax on the said income, and the revenue was unable to reassess the said income as business income solely on account of the limitation provisions under the statute. As far as the appellant assessee is concerned, he too did not choose to file the Revision Petitions immediately after coming to know of the assessment order for the assessment years 2006-2007 and 2008-2009, when the revenue had changed its stand and insisted on the assessment of the profits on sale of shares as business income. Had the appellant filed the revision petitions immediately on noting the changed stand of the revenue, perhaps the view taken by us in this appeal might have been different. We find, however, that the appellant assessee chose to wait till the order of the Appellate Authority that confirmed the stand of the AO with regard to the changed treatment of the income for the purposes of taxation, and only then chose to approach the revision authority through Exts. P6 and P7 Revision Petitions. The delay in approaching the revision authority cannot, therefore, be condoned as rightly held by the revision authority as also by the Single Judge in the judgment impugned in this appeal. To condone the delay and permit the appellant to re-visit the concluded assessment for the assessment years 2006-07 and 2008-09 would tantamount to conferring an unfair advantage to the appellant whilst denying such an advantage to the revenue. Thus, for the reasons stated in the judgment of Single Judge, as supplemented by the reasons in this judgment, the Writ Appeal fails and is accordingly dismissed.