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TMI Blog2014 (2) TMI 1116X X X X Extracts X X X X X X X X Extracts X X X X ..... rcumstances, apart from any other remedy as may be available under the Act, is to invoke the revisionary powers of Commissioner under Section 264 of the Act against such grievance to call upon the Commissioner to examine the same on merits in its revisionary jurisdiction in accordance with law – thus, the order of the Commissioner set aside – the matter remitted back to the Commissioner to decide the revision on merits – Decided in favour of Assessee. - W. P. (C) No 3660 of 2006 - - - Dated:- 3-1-2014 - Abhay Manohar Sapre And A. K. Goswami,JJ. ORDER (A. M. Sapre,CJ) By filing this writ petition under Article 226/227 of the Constitution of India, the writ petitioner (an income tax assessee) seeks to challenge the order dated 20.2.2003 (Annexure VI) passed by the Commissioner of Income Tax, Guwahati - II under Section 264 of the Income Tax Act (for short hereinafter called the Act ). Facts of the case are short. They, however, need mention in brief infra. The petitioner is a public limited company registered as such under the Companies Act. They are engaged in the business of manufacture and sale of asbestos cement sheets, galvanized iron sheets (plain and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1). The assessee s grievances are as under:- a) Disallowances u/s 43B has been wrongly made for Rs.21,77,832/- against the correct amount of Rs.11,32,623/- AO be directed accordingly. b) Adjustment of capital subsidy of Rs.55,555/- as revenue receipt. In response to this office notice Shri M.L.Rajak Deputy Manager (Accounts) appeared with written submission and the case was discussed with him. On going through the assessment record it is seen that the assessee has filed total business loss of Rs.81,32,160/- thereby claiming a refund of Rs.81,901/-. It is also seen from the record that the AO has processed the return of loss as per the loss return filed by the assessee at Rs.81,32,160/- and also issued the refund as claimed by the assessee i.e. Rs.81,901/- by giving interest of Rs.6,068/-. The above facts reveal that the assessee is not aggrieved by the order of the AO passed u/s 143(1). The issues/the grievances mentioned in the assessee s petition are not arisen out of the order passed by the AO and as such it has no relation to the order passed by the AO. Therefore it is not an issue which can be dealt with u/s. 264 as it is not an issue/grievance arisen out of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion filed under Section 264 ibid because it was the mistake committed by the petitioner and, therefore, it was not entitled to raise the grievance in the revision. This is what was held by the Commissioner (reproduced in the judgment by the High Court), while declining to entertain the revision filed by the assessee:- The commissioner was of the view that his revisionary powers did not extend to giving relief to the assessee on account of the assessee s own mistake which he detects after the assessment is completed. In this view of the matter, he (commissioner) refused to give any relief to the petitioner in respect of the under totalling of the purchase to the tune of Rs. 20,000. The petitioner (assessee) has challenged the commissioner s order to the extent he has refused to give relief in respect of the under totaling of purchases to the extent of Rs. 20,000. The High Court then formulated the following question for deciding the petition:- The only question which arises for our determination is whether the Commissioner, in exercise of powers under S.264, could have given relief to the petitioner in respect of the under-totalling of the purchases to the extent of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner was also not right in holding that the over-assessment did not arise from the order of assessment. In other words, the assessment of the total income of the assessee is not correctly made in the assessment order and it has resulted in over-assessment. The Commissioner would not be acting de hors the I. T. Act, if he gives relief to the assessee in a case where it is proved to his satisfaction that there is over-assessment, whether such over-assessment is due to a mistake detected by the assessee after completion of assessment or otherwise. In our opinion, the Commissioner has misconstrued the words subject to the provisions of this Act in S.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 S.264(1). In our opinion, therefore, the Commissioner was wrong in not giving relief to the petitioner in respect of over-assessment as a res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to raise its grievance against such order before the higher authority under the Act, may be, it was based on own mistake of the assessee or otherwise. In order to, therefore, raise any kind of grievance after the issue is dealt with by the Assessing Authority, one of the remedies available to the assessee in such circumstances, apart from any other remedy as may be available under the Act, is to invoke the revisionary powers of Commissioner under Section 264 of the Act against such grievance to call upon the Commissioner to examine the same on merits in its revisionary jurisdiction in accordance with law. In the light of foregoing discussion, the writ petition succeeds and is allowed in part. The impugned order of the Commissioner dated 20.2.2003 (Annexure -VI) is quashed by issuance of writ of certiorari. The revision filed by the petitioner under Section 264 of the Act is held maintainable. The revision is now restored to the file of the Commissioner of Income Tax, Guwahati and he is directed to decide the revision on merits with a view to find out as to whether grievances raised by the petitioner (assessee) in its revision petition is acceptable on merits and if so, how a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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