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TMI Blog2018 (2) TMI 514X X X X Extracts X X X X X X X X Extracts X X X X ..... a non-resident. The petitioner should not be shut out on technicalities and the facts should not be left unexamined. One more aspect which has to be taken into consideration is with regard to the observations made by the Commissioner while passing the order dated 28.03.2014, wherein the Commissioner himself has stated that the issue pertaining to the status of the petitioner as a resident or a non resident cannot be broached under Section 263 and the assessee could have come u/s 264 separately on the issue. Therefore, the Commissioner was satisfied with the issue raised by the petitioner regarding the status was a matter that could be considered u/s 264. Thus, for all the above reasons, the delay in filing the petition should be computed from the date on which the ITAT dismissed the petition (i.e.,) on 25.06.2015 and if that period is reckoned, revision petition had to be filed within a period of two months from the said date. Therefore, it cannot stated to be either hopelessly time barred and delay remains unexplained. Thus, for the above reasons, the delay in filing the revision petition, if any, requires to be condoned. - W. P. No. 17238 to 17241 of 2017 - - - Dated:- 9- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he claim of foreign remittance and filed return dated 25.11.2008, admitting foreign income of ₹ 54,80,652/- and he also made a claim of having earned income from abroad which was subjected to taxation by the Canada Revenue Agency and claimed tax credit of ₹ 18,95,279/- in respect of income included in the global income brought to tax. The respondent pointed out that the assessing officer had allowed the claim prima facie on the basis of the documentary evidence submitted by the assessee. It was observed that enquiries were made and information was received that the claim of the petitioner having earned income in Canada, on which he has paid tax was false. In response to the Canadian Tax Payment, statement filed by the petitioner, enquiries were made with the Canadian Revenue Agency and certain discrepancies were noted. Therefore, the respondent concluded that no credence could be given to the claim of foreign Tax Payment made by the assessee and to that extent, the tax credit for such foreign payment given in the assessment order dated 29.12.2008, prima facie appears to be erroneous and prejudicial to the interest of revenue. 5. The petitioner/assessee was required t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus the petitioner's case stood vindicated as the assessing officer accepted the status of the petitioner as non-resident. After about 27 months from the date on which the assessment order was passed i.e., on 14.12.2011, the respondent exercised suo motu powers under Section 263 of the Act, observing that even though the assessee had furnished materials such as passport and details of stay in India during the proceedings before the respondent indicating that he was enjoying non-resident status, held that such issue cannot be considered under Section 263 as the assessee could have come under Section 264 of the Act separately for the said issue. For this reason, the assessee's claim as a non-resident was rejected and assessed as resident and the Canadian income were held to be taxable in India. Since the status of the assessee was held to be resident, as originally claimed by him and held by the Assessing Officer in the original assessment order dated 29.12.2008, direction was issued to the Assessing Officer to redo the assessment as per the computation given in the order dated 28.03.2014 and work out the tax including appropriate interest. 6. The petitioner being aggriev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b Section 2 of Section 264 of the Act states that the Commissioner shall not on his own motion, revise any such order under Section 264 of the Act, if the order has been made more than one year previously. Therefore, the delay in filing the petition has been computed from the date on which the original assessment was passed i.e., 29.12.2008. The stand taken in the impugned order has been reiterated in the counter affidavit and emphasized in a very vehement manner by the learned standing counsel for the Revenue. 7. On a reading of Section 264 of the Act, it is clear that the language employed in the said provision gives wide powers to the Commissioner and such powers can be exercised suo motu or an application by the assessee. The power of revision includes the power to call for the records of any provisions under the Act in which, a common order passed, the Commissioner is empowered to make enquiry and cause enquiry to be made subject to the provision thereto, not being an order prejudicial to the assessee. Thus the Statute does not restrict the powers of the Commissioner in any manner to the said effect. The circular was issued by the CBDT as early as 11.04.1995 in Circular No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner invoked his power under Section 263 of the Act resulting in an order dated 30.03.2011. During the course of proceedings, the Commissioner had accepted additional information furnished by the assessee which was forwarded to the Director, Foreign Taxation Division, CBDT, New Delhi for verification and appropriate report. Ultimately an order could not be passed by the Commissioner on merits as the proceedings under Section 263 of the Act were getting time barred and the matter was remanded to the assessing officer for consideration. Once again, the Commissioner exercised suo motu power under Section 263 of the Act and an order was passed after 27 months by order dated 28.03.2014. 9. The petitioner, being aggrieved, filed an appeal before the ITAT and it took nearly 15 months for the ITAT to take a decision in the matter and ultimately, an order was passed on 25.06.2015 dismissing the petitioner's appeal two months thereafter. The petitioner filed revision petition on 07.09.2015. The learned Senior Standing counsel for the Revenue argued that the petitioner cannot take advantage of the proceeding initiated by the Department under Section 263 of the Act. I am unable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he second time by way of capital gain has not been found to be incorrect even prima facie. In matters where refunds are involved and the assessee's right to such refund is beyond any reasonable doubt, a liberal view of the conditionalities subject to which the relief can be granted is warranted. It is not the policy of the Act to enable the State to collect monies from citizens and retain the same even when the money is not required to be paid as tax. The fact that the payment had been made erroneously cannot by itself be allowed to stand in the way of the relief being granted to the assessee, if relief is permissible by the exercise of a discretionary power vested in the statutory authorities. The discretion so vested is required to be exercised in a manner which would protect and promote the just interest of the assessee. The position of the assessee vis-a-vis the Revenue is not strictly adversarial, although more often than not, that is the manner in which the two parties perceive their role. The Revenue is not to be regarded as interested in scoring points against the assesee, but only in the just enforcement of the provisions of the Act. The discretion of the authority, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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