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TMI Blog2004 (12) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... ,50,000. Admittedly, when the payment of the said amount was made by the employer, the employer did not inform the petitioner regarding the exemption from tax that the petitioner would be entitled to and accordingly, in the absence of the necessary clarification or the certificate from the employer, the petitioner furnished the return of income on July 31, 2001, for the assessment year 2001-02. It is the say of the petitioner that, subsequently, the petitioner became aware that he was entitled to certain portion of the income so received as being exempt under section 10(10C) of the Act, but the employer had deducted tax at source on the entire amount by treating the same as salary and accordingly, the tax deduction certificate in Form No. 16 had been furnished by the employer, which was annexed by the petitioner to the return of income filed by the petitioner. Accordingly, the petitioner had declared a total income of Rs. 9,98,182 on the basis of tax deduction certificate issued by the employer in Form No. 16 and claimed a refund of Rs. 12,219. There appears to be some dispute between the petitioner and the respondent as to whether the aforesaid return of income was or was not pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order under section 143(1) of the Act, accepting the returned income at Rs. 9,98,182 was held to prevail on the basis of the original return of income dated July 31, 2001. In the meantime, the petitioner preferred an application under section 264 of the Act, requesting the respondent-Commissioner to revise the intimation made by the Assessing Officer on the return filed by the petitioner on July 31, 2001, or grant relief on the basis of the revised return filed on September 24, 2002. The revision petition was filed on July 4, 2003, and the petitioner had further requested that, in the peculiar circumstances of the case, the delay in preferring the same may be condoned. It was the case of the petitioner that the order made by the Assessing Officer under section 154 of the Act was in order and if the same was found to be incorrect, the petitioner be assessed on the basis of the revised return filed on September 24, 2002, and grant the relief admissible under the provisions of section 10(10C) of the Act, directing the Assessing Officer to issue further refund along with admissible interest at appropriate rate under section 244A of the Act. The respondent has rejected the petition u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be March 31, 2003. Admittedly, the revised return has been filed on September 24, 2002, i.e., before March 31, 2003. Therefore, the emphasis by the respondent on the order under section 143(1), dated March 28, 2002. It is an admitted fact, so far as the respondent is concerned, that no assessment order, as such, has been framed under section 143(3) of the Act. The return originally filed by the petitioner has been processed under section 143(1)(ii) of the Act, i.e., a refund due on the basis of such return has been granted. However, it requires to be noted that the respondent has nowhere stated that the refund order was accompanied by an intimation as required under the said provision. Even if, for the sake of argument, it is accepted that an intimation was also forwarded along with the refund order, the same was admittedly issued only on May 13, 2002. In the circumstances, there being no order of assessment as envisaged under the provisions of the Act, a revised return under section 139(5) could have been submitted by the petitioner on or before March 31, 2003, and in fact, was so submitted on September 24, 2002. Under section 143, the following Explanation was inserted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n law. As already noticed hereinbefore, the Assessing Officer was not only right in law, but was fully justified in passing the order under section 154 of the Act after entertaining the revised return which was filed within the time-limit statutorily prescribed. Therefore also, the respondent could not have assumed jurisdiction under section 263 of the Act. In the order under section 263 of the Act, the respondent-Commissioner has not dealt with the principal issue which goes to the root of the matter, namely, whether the petitioner was entitled to claim exemption under section 10(10C) of the Act or not, and the same has been brushed aside by observing: "The issue, whether the assessee was legally entitled to claim exemption under section 10(10C) of the Income-tax Act, at Rs. 5,00,000 out of the V.R.S. amount of Rs. 7,50,000 is a separate issue and not for consideration here." This observation assumes importance in the light of the findings recorded by the respondent-Commissioner in his separate order of even date made under section 264 of the Act. The respondent, while framing the assessment under section 264 of the Act refers to and relies upon his own order made under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thus, rejected the petition. This court, on an analysis of the powers of the Commissioner under section 264 of the Act, has observed thus at pages 613 and 614 of the Report: "It is clear that under section 264, the Commissioner is empowered to exercise revisional powers in favour of the assessee. In exercise of this power, the Commissioner may, either of his own motion or on an application by the assessee, call for the record of any proceedings under the Act and pass such order thereon not being an order prejudicial to the assessee, as he thinks fit. Sub-sections (2) and (3) of section 264 provide for limitation of one year for the exercise of this revisional powers, whether suo motu, or at the instance of the assessee. Power is also conferred on the Commissioner to condone delay in case he is satisfied that the assessee was prevented by sufficient cause from making the application within the prescribed period. Subsection (4) provides that the Commissioner has no power to revise any order under section 264(1): (i) while an appeal against the order is pending before the Appellate Assistant Commissioner, and (ii) when the order has been subject to an appeal to the Income-tax Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccount 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 Rs. 20,000." The position is, therefore, that, regardless of whether the revised return was filed or not, once an assessee is in a position to show that the assessee has been over-assessed under the provisions of the Act, regardless of whether the over-assessment is as a result of the assessee's own mistake or otherwise, the Commissioner has the power to correct such an assessment under section 264(1) of the Act. If the Commissioner refuses to give relief to the assessee, in such circumstances, he would be acting de hors the powers under the Act and the provisions of the Act and, therefore, is duty-bound to give relief to an assessee, where due, in accordance with the provisions of the Act. In the present case, the respondent-Commissioner has nowhere stated that the petitioner ..... 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