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TMI Blog2023 (9) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... ven the errors committed could be rectified. Commissioner is bound to apply his mind to the question whether Petitioner's income was taxable and to what extent. Admittedly, amount payable under the IDS has been paid. Section 188 of the IDS provides that the amount of undisclosed income declared in accordance with 183 shall not be included in total income of the declarant for any assessment year for the Income-tax Act, if the declarant makes the payment of tax and surcharge referred to in Section 184 and the penalty referred to in Section 185, by the date specified under Sub-section 1 of Section 187. Petitioner having paid the tax and surcharge and the penalty with interest, amount of undisclosed income cannot be included in the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ( Act ) in the previous year in which the declaration was made. In view thereof, Petitioner filed revised return of income. 2. Subsequently vide Finance (No. 2) Act, 2019, a proviso was inserted in Section 187(1) of the Finance Act, 2016 which provided that where the amount of tax, surcharge and penalty, has not been paid within the due date notified under this sub-section, the Central Government may, by Notification in the Official Gazette, specify class of persons, who may, make the payment of such amounts on or before such date as may be notified by the Central Government, along with the interest on such amount @ 1% for every month or part of a month comprised in the period commencing on the date immediately following the due date an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the IDS Finance Act, 2016. The time limit, however, to file revised return had expired. Left with no option, Petitioner, therefore, moved an application under Section 264 of the Act before Respondent No. 1. Respondent No. 1 provided an opportunity to Petitioner to explain her case and also asked Assessing Officer to submit a report after ascertaining correctness of the contentions of Petitioner. The Assessing Officer submitted detailed report dated 8th March 2021 wherein the Assessing Officer submitted that assessee should file revision petition within one year from the date of the order sought to be revised but the application has not been made in time. At the same time, the Assessing Officer also submitted that considering the circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt was considering whether the question of change of opinion would arise when an order under Section 143(1)(a) of the Act had been passed. 7. The provisions of Section 264 and the power available to the Commissioner to exercise under Section 264 of the Act came up for consideration before the Division Bench of this Court in Hindustan Diamond Company Pvt. Ltd. v. CIT (2003) 175 Taxation 91 (Bom). The Division Bench was pleased to observe that exercise of power under Section 264 was not subject to the power of the Assessing Officer to make adjustment under Section 143(1) of the Act. The Court held that power of the Commissioner under Section 264 is rather wide and even the errors committed could be rectified. Paragraph 6 of the Hindust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner under Section 265 of the Act to grant relief to the assessee if available to the assessee as per the decision of the Apex Court. Exercise of powers under Section 264 is not subject to the power of the Assessing Officer to make adjustments under Section 143(1) of the Income-tax Act. Therefore, relief can be granted to the assessee under Section 264 even if the power of adjustment under Section 143(1) is taken away from the Assessing Officer. (emphasis supplied) 8. Section 264 of the Act also came up for consideration before the Hon'ble Delhi High Court in Vijay Gupta v CIT Delhi-III [2016] 68 taxmann.com 131 (Delhi) where paragraph 35 reads as under: 35. From the various judicial pronouncements, it is settled ..... X X X X Extracts X X X X X X X X Extracts X X X X
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