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TMI Blog2012 (11) TMI 720X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Commissioner's stand that deletion of quantum additions not having achieved finality, the revision should be dismissed, also not in agreement.- The penalty was based on certain quantum additions. Such additions came to be deleted by the Commissioner(Appeals). Further appeal by Revenue before the Tribunal was rejected. When the Commissioner was deciding the revision petition of the assessee, what was prevailing was the order of the Tribunal. It may be that further appeal by the Revenue against such decision of the Tribunal was pending before High Court. Mere pendency of appeal before High Court or even admission would not annul the order of the Tribunal or even of course in absence of stay, keep it in abeyance. - Matter remanded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal. Turning down such contentions of the assessee, the Commissioner rejected the revision petition on following grounds : "(i) At the outset, it would be pertinent to point out that it is trite law that assessment proceedings and penalty proceedings are distinct in nature. It is seen from the records that the Hon'ble Gujarat High Court has admitted the quantum appeal of the Revenue in the case of the assessee vide Tax Appeal No.1547 of 2009 and 1548 of 2009 for A.Ys 2001-02 and 2002-03 respectively. All these appeals have been filed on the issue of substantial questions of law. The quantum issue has also not attained finality. It would be premature on my part to adjudicate in this regard. As such, the penalty levied u/s. 271(1)(c) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellate authorities. He cannot claim relief under section 264 of the Act. 4. Both the reasons recorded by the Commissioner are not tenable. With respect to scope of revision petition under section 264 of the Act, we are of the opinion that the Commissioner was wholly misguided in his approach. Section 264 pertains to revisional powers of the Commissioner and provides that in the case of any order other than an order to which section 263 applies passed by an authority subordinate to him, the Commissioner may, either of his own motion or on an application by the assessee for revision, call for the record of any proceeding under this Act in which any such order has been and may make such inquiry or cause such inquiry to be made and, su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Commissioner has no power to revise any order under s. 264(1) : (i) while an appeal against the order is pending before the AAC, and (ii) when the order has been subject to an appeal to the Income Tax Appellate Tribunal. Subject to the above limitation, the revisional powers conferred on the Commissioner under section 264 are very wide. He has the discretion to grant or refuse relief and the power to pass such order in revision as he may think fit. The discretion which the Commissioner has to exercise is undoubtedly to be exercised judicially and not arbitrarily according to his fancy. Therefore, subject to the limitation prescribed in s. 264, the Commissioner in exercise of his revisional power under the said section may pass suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of assessment or otherwise. In our opinion, the Commissioner has misconstrued the words "subject to the provisions of this Act" in section 264(1) and read a restriction on his revisional power which does not exist. The Commissioner was, therefore, not right in holding that it was not open to him to give relief to the petitioner on account of the petitioner's own mistake which it detected after the assessment was completed. Once it is found that there was a mistake in making an assessment, the Commissioner had power to correct it under section 264(1). In our opinion, therefore, the Commissioner was wrong in not giving relief to the petitioner in respect of over-assessment as a result of under-totalling of the purchases to the extent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue against such decision of the Tribunal was pending before High Court. Mere pendency of appeal before High Court or even admission would not annul the order of the Tribunal or even of course in absence of stay, keep it in abeyance. Therefore, if the Commissioner was inclined to decide the revision petition without awaiting for the High Court's decision in appeal of the Revenue, he was duty-bound to apply the order of the Tribunal as it stood at that time. If he was of the opinion that because of pendency of the proceedings before the High Court, the revision should be kept pending, the same would stand on a different footing. In any case, if he did chose to decide the revision petition, he had no choice but to take into account th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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