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TMI Blog2021 (12) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... the cases. Incidentally the same officer passed the three orders. The operative part in all the three orders is common and the same reads as under:- "There is no case either of ignorance of the law on the part of the petitioner since the revision petition has been made well within the time allowed under that section and the prayer contained therein is also in order. Therefore, there was no reason why the petitioner did not prefer regular appeal under Section 246 of the Act by making 20% of the payment towards outstanding demand. Even on merits, there are no grounds to proceed as the applicant has never attended before the AO to plead its case on the merits of the case and instead raised defects in the speaking order of the AO and other technicalities as discussed in para 03 above, which were duly met before initiating proceeding in the case. The unexplained share application money introduced through paper/shell entities have been added to income and that is how matters stand. Further, this issue should have been rightly agitated before the CIT (Appeals). Therefore, I do not find any special reasons to delve into the merits of the case under revisionary powers. Moreover the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erroneous assessment, the petitioner expressly waived his right to file appeal before Commissioner Income Tax (Appeal) and filed a revision petition under Section 264 of the Act on 28.12.2018. In CWP No.12545 of 2021, the following facts need to be noticed:- The petitioner company has filed its return of income for the Assessment year 2012-13 on 30.09.2012 declaring income of Rs. 35,34,582/-. A survey u/s 133A of the Income Tax Act, 1961 was conducted at the business premises of the petitioner company on 12.02.2015 by the Deputy Director of Income Tax (Investigation). Amritsar and on the basis of information gathered by the department, the Assistant Commissioner of Income Tax, Circle-2, Amritsar (hereinafter referred as ACIT, Circle 2, Amritsar) recorded reasons to believe and reopened the assessment for the assessment year 2012-13 under Section 147 of the Income Tax Act, 1961. The Assessing Officer issued notice u/s 148 of the Act on 08.06.2016. That in response to the aforesaid notice, the petitioner submitted a letter dated nil received in the Office of the Additional Commissioner of Income Tax. Range-2, Amritsar on 08.09.2016 stating that the return already filed by the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner Income Tax-2018 (254) Taxman 357 and Paradigm Geophysical Pty. Ltd vs Commissioner of Income Tax- W.P. (c) 6052 of 2017. Per contra, learned counsel appearing for the respondents has asserted that a well-reasoned and speaking order has been passed by the Assessing Officer and there was no merit in the revision filed by the petitioner. He has relied also upon judgement in the case of M/s Nataraju (HUF) versus Pr. Comissioner Income Tax in WP No.54836 of 2017. The counsel for the respondents has vehemently argued that revision under Section 264 of the 1961 Act is not an alternate remedy and the same cannot be invoked in a routine manner. We have heard learned counsel for the parties. In our considered opinion, the two questions which arise for consideration of this Court are:- A. Whether revision under Section 264 of the 1961 Act is an alternate remedy to the remedy of regular appeal provided under Section 246 of the 1961 Act or not? B. Whether the authority ought not have proceeded to give findings on merits after holding that revision was not maintainable? To answer the first question, it will be apposite to reproduce the provision of Section 264 of the IT Act:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner's power of revision under this Section is subject to the certain conditions including:- 1. The order must be passed by an authority subordinate to the Principal Commissioner or Commissioner. 2. In case the order is appealable, the Commissioner cannot exercise his revisional jurisdiction till the time within which the appeal can be filed expires. However, if an appeal lies against the order to the Commissioner (Appeals) or to the Appellate Tribunal, the assessee must have waived his right of appeal. 3. If an appeal has been made to the Deputy Commissioner (Appeals), revisional power cannot be exercised during pendency of appeal. 4. Once an order has been made a subject of an appeal to the Commissioner (Appeals) or to the Appellate Tribunal, the Commissioner cannot exercise his revisional power. It is not the case of respondents that the case of the petitioner is barred on any of the aforesaid counts. Thus, in our view, the revisional authority erred in dismissing the revision petition filed by the petitioner merely on the ground that the same was not maintainable . As already held hereinabove, remedy under Section 264 of the 1961 Act is an alternate remedy to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority, as they were aggrieved by the order of the Assessing Officer. Therefore, the assesses were well within their right to have opted for the remedy by way of a revision. Hence, we find that, the learned Single Judge was not right in making observations with regard to the fact that, the assessees choose to file a revision under Section 264 of the Act, instead of filing an appeal under Section 246A of the Act." With regard to the second question, we need to observe that it is a trite law that in case the Court wishes to non-suit the litigant on the issue of maintainability, it ought not enter into the merits of the case as held in (2009) 5 SCC 162 Nawab Shaqafath Ali Khan & Ors. Versus Nawaz Imdad Jah Bahadur & Ors. However, in the present case(s), the revisional authority has not only dismissed the revision petition as not maintainable but has also non-suited petitioner(s) on the merits of the case. Keeping in view the aforesaid discussions, we hold that the impugned order is erroneous on both the counts. Consequently, we deem it appropriate to set aside the orders passed by the revisional authority in all the three petitions. The matter is remanded to the Commissioner to de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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