2013 (1) TMI 513

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..... d 8 days is an order in the appeal filed by the petitioner. Thus once, it is so held as a necessary consequence, it must be hold that the petitioner has not waived his appellate right, to maintain an application for revision under Section 264. If that be so, the finding of the revisional authority that in view of Section 264(4), the revision filed by the petitioner was not maintainable, has to be upheld - writ petition fails.
MR. ANTONY DOMINIC, J. PETITIONER BY ADVS.SRI.T.M.SREEDHARAN, SMT.C.K.SHERIN, SRI.V.P.NARAYANAN. RESPONDENT BY ADVS. SRI.P.K.R.MENON,SENIOR COUNSEL, GOI(TAXES) & SRI.JOSE JOSEPH, SC, FOR INCOME TAX. JUDGMENT Petitioner is an assessee under the Income Tax Act. By Ext.P1, assessment for the year 2000-2001 wa .....

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..... The Commissioner shall not revise any order under this section in the following cases: (a) Where an appeal against the order lies to the Deputy Commissioner(Appeals) or to the Commissioner(Appeals) or to the Appellate Tribunal but has not been made and the time within which such appeal may be made has not expired or, in the case of an appeal to the Commissioner (Appeals) or to the Appellate Tribunal, the assessee has not waived his right of appeal; or (b) where the order is pending on an appeal before the Deputy Commissioner (Appeals); or (c) where the order has been made the subject of an appeal to the Commissioner (Appeals) or to the Appellate Tribunal. 7. Reading of this provision shows that the power of revision can be exercised b .....

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..... , the Apex Court finally concluded thus: "On the principles laid down in these decisions, it must be held that an appeal presented out of time is an appeal, and an order dismissing it as time-barred is one passed in appeal." In the light of this binding precedent, there is no escape from the conclusion that the order dated 28.03.2007 dismissing the appeal filed by the petitioner is an order in the appeal filed by the petitioner. Once, it is so held as a necessary consequence, I must also hold that the petitioner has not waived his appellate right, to maintain an application for revision under Section 264 of the Act. If that be so, the finding of the revisional authority that in view of Section 264(4), the revision filed by the petitioner .....

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