9911796707
TMI Blog2013 (5) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner was not given opportunity of hearing or how the notice was not served has been pointed out therein. On the contrary, in the last paragraph of the assessment order it is mentioned by the Assessing Authority that the petitioner avoided the assessment proceedings. No material was filed by the assessee before the CIT to substantiate it. It is not the case in the writ petition that any supporting material in support of the grounds raised in the petition under section 264 was before the Commissioner of Income Tax who failed to consider it. In absence of any material to show that the assessment order was not correctly framed, the Commissioner of Income Tax, in absence of the assessee, was left with no option but to dismiss the revision. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been dismissed by the Commissioner of Income Tax on 25th of March, 2008 as no one attended the office on the fixed date. Thereafter, an application to recall the said order was filed which is dated 9th of June, 2008. The said application has been dismissed by the order dated 26th of October, 2010 on the short ground that there is no provision under the Income Tax Act for recalling the order passed under section 264 thereof. Feeling aggrieved, the present writ petition has been filed. Heard Sri Rakesh Ranjan Agrawal, learned counsel for the petitioner and Sri Shambhu Chopra, learned counsel for the respondents. Learned counsel for the petitioner submitted that power to pass exparte order includes the power to recall the same notwiths ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the Commissioner of Income Tax was right in rejecting the restoration application on the ground and on the facts of the present case that he does not possess power to recall the exparte order. Even assuming that the Commissioner has power to recall the exparte order on merits, we do not find that the petitioner has been able to establish sufficient cause for his non appearance on the date fixed. A copy of the application for recall of the exparte order has been filed as Annexure-4 to the writ petition. It is a short document and contains two small paragraphs. In para-1 thereof it has been stated that the petitioner could not make compliance of the notices for proceeding under section 264 because of his 'illness' and in paragraph 2 it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he could not dismiss the revision in absence of the petitioner. On a careful consideration of the matter, it is difficult to cull out any such proposition of law from the aforesaid relied upon decision. Reference was made to certain observations made here and there on paragraph-317 of the report in particular. The observation made therein should be read with reference to subject and context of the case. There, it has been laid down that if the petitioner has made a mistake while filing the return, it was for the Assessing Officer to assist the petitioner by pointing out the mistake to him. An assessee is taxed only in respect of the income which is chargeable to tax. If the Assessing Officer has failed to do so, on approach to the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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