9911796707
TMI Blog2019 (6) TMI 1099X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.05.1996, the Commissioner of Income Tax, Madras - 34 granted recognition/approval to M/s.Karur Vysya Bank (Employees') Pension Fund, Karur with effect from 29.09.1995. The value of fringe benefit in relation to the contribution made by the writ petitioner to the approved pension fund and the notional tax thereon for the assessment year 2007-08 is as under : Particulars Amount (In Rs.) Value of fringe benefit in relation to contribution to approved pension fund assessed to FBT for AY 2007-08 6,01,54,994/- Notional Tax thereon 2,02,48,171/- 3.The writ petitioner paid FBT for the said assessment year 2007-08 to the extent of Rs. 2,60,97,892/- including the tax for the contributions mentioned above. While so, on 23.06.2008, an intimation under Section 115 WE of the Act was served on the writ petitioner calculating interest due under Sections 115 WJ (3) and 115WK to the extent of Rs. 46,97,621/- which resulted in tax due to the extent of Rs. 49,96,310/-. Against the said intimation under Section 115 WE of the Act, a rectification application dated 04.08.2008 under Section 154 of the Act was filed contending that there has been an erroneous charge of interest. The Assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challenge in this writ petition. 7.The learned counsel appearing for the writ petitioner reiterated all the contentions set out in the affidavit filed in support of the writ petition. He also placed reliance on the case laws which were filed in the form of a compilation. The respondent had also filed a detailed counter affidavit and the learned Standing Counsel elaborately argued and wanted this Court to sustain the impugned order passed by the respondent. 8.I carefully considered the rival contentions. Section 264 of the Income Tax Act reads as under : "Revision of other orders. "264.(1) In the case of any order other than an order to which section 263 applies passed by an authority subordinate to him, the Principal Commissioner or Commissioner may, either of his own motion or on an application by the assessee for revision, call for the record of any proceeding under this Act in which any such order has been passed and may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act, may pass such order thereon, not being an order prejudicial to the assessee, as he thinks fit. (2)The Principal Commissioner or Commissioner shall not of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner declining to interfere shall, for the purposes of this section, be deemed not to be an order prejudicial to the assessee. Explanation 2.-For the purposes of this section, the Deputy Commissioner (Appeals) shall be deemed to be an authority subordinate to the Principal Commissioner or Commissioner." 9.Thus, the condition precedent for invoking this provision is that an order should have been made by the authority subordinate to the respondent. Section 264(1) commences with the expression "in the case of any order" . Section 264(2) also forbids the revising authority from revising any order on its own motion, if it has been made more than one year previously. Section 264 (3) prescribes the limitation of one year and empowers the revising authority to condone the delay in filing an application by the assessee if sufficient cause is made out. But even the said sub-section talks about making of application within one year from the date on which the order in question was communicated or the date on which the assessee came to know of it whichever is earlier. 10.Therefore, unless there is a revisable order, the jurisdiction under this provision cannot be invoked. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee, 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 assessee, but only in the just enforcement of the provisions of the Act. The discretion of the authority, therefore, on the facts of this case, was required to be exercised by bearing the aforementioned considerations in mind." 12.The writ petitioner's counsel wants me to bear in mind the aforesaid observations made by the eminent Judge. He also placed reliance on the decision of the Hon'ble Supreme Court reported in (1965) 57 ITR 349 (SC) (Dwarka Nath vs. Income Tax Officer). The Hon'ble Supreme Court observed that Article 226 of the Constitution of India is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd may, from time to time, issue such orders, instructions and directions to other incometax authorities as it may deem fit for the proper administration of this Act, and such authorities and all other persons employed in the execution of this Act shall observe and follow such orders, instructions and directions of the Board : Provided that no such orders, instructions or directions shall be issued- (a)so as to require any income-tax authority to make a particular assessment or to dispose of a particular case in a particular manner; or (b)so as to interfere with the discretion of the Commissioner (Appeals) in the exercise of his appellate functions. (2)Without prejudice to the generality of the foregoing power,- (a)the Board may, if it considers it necessary or expedient so to do, for the purpose of proper and efficient management of the work of assessment and collection of revenue, issue, from time to time (whether by way of relaxation of any of the provisions of sections 115P, 115S, 115WD, 115WE, 115WF, 115WG, 115WH, 115WJ, 115WK, 139, 143, 144, 147, 148, 154, 155, 158BFA, sub-section (1A) of section 201, sections 210, 211, 234A, 234B, 234C, 234E, 270 A, 271, 271 C, 271 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Income Tax Act could have been invoked. The authority ought to have posed only one question to himself i.e., whether the assessee was liable to pay the tax in question or not. If he was not liable to pay the tax in question, the department had no business to retain it even if it was wrongly paid. Of course, the question of paying interest for the retained amount will not arise. It is subject to the outcome of the challenge that is pending before the Madras High Court at the instance of the department. It is open to the respondent to pass such orders as the facts and circumstances warrant. But then, an applicant ought not to have been simply shown the door. 16."Volenti non fit injuria" is a maxim invoked in the law of torts. It means that there is no injury to one who consents. The respondent appears to have applied the said principle while considering the petitioner's application. The respondent failed to note that the issue was not one of revisability of an order but one of refund. While the authority is right in holding that no revisable order existed, he should have also looked a little beyond and seen that no liability also existed. While I sustain the stand of the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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