9911796707
TMI Blog2010 (7) TMI 1097X X X X Extracts X X X X X X X X Extracts X X X X ..... ashing the order of the Respondent Commissioner at Exhibit-B. [B] This Hon'ble Court be pleased to issue a writ of mandamus or any other appropriate writ, order or direction asking the Respondent Commissioner to allow the revision application of the petitioner at Exhibit-A. 3. For the assessment year 2003-04, the petitioner submitted return of income on 24.11.2003 disclosing total income at ₹ 3,31,56,790/-. The Assessing Officer passed an order under section 143(1) of the Act on 30.3.2005 accepting the income as returned. Intimation under section 143(1) of the Act was served on the petitioner on 27.3.2009. During the assessment year 2003-04, the petitioner had made provision for commission for performance guarantee of &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... back, then the real income would have been ₹ 1,43,85,334/- in place of the returned income of ₹ 3,31,56,790/-. The petitioner, therefore, filed an application under section 264 of the Act dated 13.4.2009 before Commissioner of Income Tax, the respondent herein which came to be rejected vide the impugned order dated 3.12.2009 which is subject matter of challenge in the present petition. 5. In response to the petition, the respondent has filed affidavit in reply wherein it is stated that the return was processed on 31.3.2005 and a refund of ₹ 32,710/- was determined in the case of the assessee. The refund order along with intimation was dispatched to the assessee. Hence, it is clear that more than four years have elapsed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the Department itself, the intimation was served upon the petitioner on 27.03.2009. The moment the intimation came to be served upon the petitioner, the petitioner had filed the application under section 264 of the Act on 13.04.2009. It is submitted that in the circumstances, the Commissioner was not justified in holding that the petitioner had filed the application under section 264 after a lapse of about six years. Learned advocate has also addressed the Court on the merits of the impugned order; however, considering the view that the Court is inclined to take in the matter, it is not necessary to set out the facts and contentions in detail. 8. On the other hand, Mr. M. R. Bhatt, learned Senior Advocate appearing for respondent h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner withdrew the earlier application and filed a fresh application under section 264 of the Act on 13.4.2009. 10. In the application dated 13.4.2009, the petitioner has stated that as the intimation under section 143(1) of the Act for assessment year 2003-04 which is sought to be revised under section 264, has been served upon the petitioner assessee only on 27.3.2009, the revision application is within time and there is no delay as such in making the application. However, as can be seen from the impugned order of the Commissioner, in the reasons stated for rejecting the application under section 264, the Commissioner has held as follows : [iii] Further when the alleged mistake as pointed out above had come to the notice of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces, in absence of any opportunity of hearing having been granted to the petitioner on the question of delay, the impugned order of Commissioner holding that the application had been filed after a delay of six years, suffers from the vice of principles of natural justice and as such, cannot be sustained. 12. For the foregoing reasons, the petition succeeds and is accordingly allowed. The impugned order dated 03.12.2009 (Annexure-C) made by respondent Commissioner is hereby quashed and set aside. The revision application bearing File No.: CITII/ Jud/Tech/264/02/2009-10 is restored to the file of the Commissioner. The Commissioner shall decide the same afresh in accordance with law after giving the parties an opportunity of hearing. If the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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