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TMI Blog2017 (11) TMI 1157X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act in which such an order has been passed and may make such inquiry or cause such inquiry to be made and pass such order thereon, not being an order prejudicial to the Assessee and subject to the provisions of this Act, as he thinks fit. Statutory power has been conferred on the Commissioner to examine and correct any order passed by a subordinate authority. It is not the case of the respondents or the reason given by the Commissioner that time for preferring appeal had not expired. It is the admitted case that time for filing appeal against the assessment order for AY 2012-13 had expired. The assessee had waived his right to file appeal. Clause (a) is therefore not attracted. Clause (b) to Section 264(4) of the Act is also not attracted in the present case and it is not the case of the Revenue that the petitioner has filed an appeal for 2012-13 before Dy. Commissioner (Appeals). The petitioner has also not filed any appeal against the said order before the Commissioner (Appeals) or the Tribunal to attract the negative stipulation in clause (c) to Section 264 (4) of the Act. The present case therefore, does not fall under clauses (a) to (c) of Section 264 (4) of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the addition/ adjustment proposed in the draft Assessment Order. Total Income of petitioner for the Assessment Years was computed by applying Section 44DA of the Act at ₹ 4,92,90,360/- as against ₹ 1,97,16,140/- offered to tax by the petitioner by applying provisions of 44BB of the Act. 7. As the petitioner had not filed any objections under Section 144C(2), recourse to sub section 4 of Section 144C was not required. In other words, no directions were passed by the Dispute Resolution Panel ( DRP') in respect of the draft Assessment Order. 8. The petitioner did not file any appeal against the final assessment order dated 11th May, 2015 passed by the AO, making the aforestated addition. 9. On 1st February, 2016, the petitioner filed a Revision Petition under Section 264 of the Act before the Jurisdictional Commissioner of Income Tax (International Taxation)-3, New Delhi ( Commissioner for short). The ground raised was that the AO had wrongly denied and not applied Section 44BB and had incorrectly invoked and applied Section 44DA of the Act. The petitioner placed reliance on ONGC vs. CIT (2015) 376 ITR 306 (SC) and CBDT Circular no. 1862 on the applicabil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4, were also raised before the CIT(A), which have been duly considered and commented upon by the CIT(A) in his order supra. The assessee's appeals for the assessment years 2013- 14 and 2014-15 are still pending with the CIT(A). 8. A perusal of the relevant assessment records reveals that the assessment in the year under consideration has been framed by the AO in accordance with the relevant provisions of law. There is not found to be any wrong application of legal provisions, or violation of procedure in the assessment proceedings and the final assessment order that could cause prejudice to the assessee. The assessee has chosen not to file an appeal against the given assessment order before the CIT(A) for the reasons best known to it, even when the issues involved in the assessment are absolutely identical to those involved in the immediately preceding year as well as in the immediately succeeding assessment years for which the assessee is in appeal The assessee seems to have taken recourse to the provisions of section 264 of the Act as an alternative to the legal remedy available to the assessee through normal appellate channel. There is thus a clear attempt on the par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revise an order cannot be exercised under clauses (b) and (c) when the order is pending in an appeal before the Deputy Commissioner (Appeals), or when the order has been made the subject of an appeal to the Commissioner (Appeals) or to the Tribunal. Revision is also not maintainable under clause (a) to sub-section 4, when an appeal against the order lies to the Deputy Commissioner (Appeals) or Commissioner (Appeals) or to the Income Tax Appellate Tribunal ( Tribunal ) but such appeal has not been filed and the time within which such appeal may be filed has also not expired. Further, for clause (a) the assessee should not have waived his right to appeal. Three conditions; non-filing of appeal, time to file appeal had not expired and non waiver of right to appeal are cumulative. 14. Thus, a Revision Petition u/s 264 of the Act can be filed against any order (including an assessment order) passed by a subordinate officer, which is otherwise appealable before Commissioner (Appeals) under section 246A of the Act or under section 253 of the Act before the Tribunal, where such appeal has not been filed and limitation period for invoking remedy has expired and the assessee has waived hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obligation on the authority. New and extraneous conditions, not mandated and stipulated, expressly or by implication, cannot be imposed to deny recourse to a remedy and right of the assessee to have his claim examined on merits. 17. The Jurisdictional Commissioner no doubt is an administrative authority to the subordinate officers including assessing officer, nevertheless the Act has conferred revisionary power on the said Commissioner. He cannot refuse to exercise the said power because the assessing officer was his subordinate and under his administrative control. The Commissioner while exercising power under Section 264 of the Act exercises quasi judicial powers and he must pass a speaking and a reasoned order. He cannot abdicate his authority on the ground that a similar issue has arisen and is subject matter of appellate proceedings in other years. This would be clearly contrary to the provisions of Section 264 of the Act. 18. The impugned order no doubt reflects and states that the contention of the petitioner was incorrect and merits rejection but it does not assign and give any reason for the said conclusion. The impugned order cannot be sustained as it does not exami ..... X X X X Extracts X X X X X X X X Extracts X X X X
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