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TMI Blog2024 (1) TMI 752X X X X Extracts X X X X X X X X Extracts X X X X ..... assessing officer or a claim made and disallowed or a claim not put forth by the assessee. A Division Bench of the Bombay High Court in Geekay Security Services (P.) Ltd. ( 2018 (12) TMI 702 - BOMBAY HIGH COURT ) after referring to the Division Bench decision of the Gujarat High Court in Hitech Analytical Services [ 2017 (9) TMI 1412 - GUJARAT HIGH COURT] and other decisions, Bombay High Court came to the conclusion that Principal Commissioner was not correct in refusing to exercise jurisdiction under Section 264 of the Act to examine the claim of the petitioner on merit. Therefore, the order of the Principal Commissioner was set aside and the matter was remanded back to the Principal Commissioner for a fresh consideration and decision on merit in accordance with law. That being the position and following the decision of the Bombay High Court in Geekay Security Services (P.) Ltd. (supra), we set aside the impugned order dated 28.03.2019 and remand the matter back to the file of the 3rd respondent for re-consideration of the revision application filed by the petitioner u/s 264 of the Act on merit after giving due opportunity of hearing to both the sides. - Hon ble The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fide error, the same was not claimed either at the time of filing the return of income or during the assessment proceeding. It is in such circumstances that petitioner filed the application before the 3rd respondent under Section 264 of the Act. Petitioner also pointed out that the application was delayed by 52 days and sought for condonation of delay. 5. By the order dated 28.03.2019, 3rd respondent condoned the delay and took up the case for revision. After adverting to Section 80-IA(1) and (2) of the Act, 3rd respondent observed that assessee did not opt to make the claim of deduction and without making any such claim, had filed the return of income. In the subsequent assessment year i.e., assessment year 2015-16 also, petitioner has not made the said claim before the assessing officer. 3rd respondent opined that petitioner in its wisdom had chosen not to claim the deduction under Section 80-IA of the Act. Therefore, he declined to interfere in the decision of the assessing officer under Section 264 of the Act. 6. Aggrieved, present writ petition has been filed seeking the relief as indicated above. 7. Respondent No.3 has filed counter affidavit reiterating the decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue consideration of the Court. 14. Facts lie within a very narrow compass. Neither in the return of income for the assessment year 2014-15 nor in the assessment proceedings petitioner raised the claim of deduction under Section 80-IA of the Act. While filing the revision application before the 3rd respondent, petitioner pointed out that it was because of an inadvertent error and bona fide mistake that such a claim was not made. Commissioner in the impugned order recorded that petitioner had decided not to exercise the option as provided under Sub-Section (2) of claiming deduction under Section 80-IA of the Act and therefore, it is not open to the petitioner to raise such a claim in a revision proceeding. 15. Before proceeding further, it would be apposite to have a glance at the provisions of Section 80-IA of the Act. 16. Section 80-IA of the Act deals with deductions in respect of profits and gains from industrial undertakings or enterprises engaged in infrastructure development etc. Sub-Section (1), as it stands today, provides that where the gross total income of an assessee includes any profits and gains derived by an undertaking or an enterprise from any business re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner or Chief Commissioner or Principal Commissioner or Commissioner may call for and examine the record of any proceeding under the Act, and if he considers that any order passed therein by the assessing officer or the transfer pricing officer, as the case may be, is erroneous insofar as it is prejudicial to the interests of the Revenue, he, may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment etc. 22. Therefore, there is a fundamental difference between Section 263 and Section 264 of the Act. For invoking the power under Section 263 of the Act, the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner should be of the opinion that an order passed by the assessing officer or transfer pricing officer is erroneous in as much as the same is prejudicial to the interests of the Revenue. In that event, he may call for the record of the proceedings before the assessing office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to exercise jurisdiction under Section 264 of the Act to examine the claim of the petitioner on merit. Therefore, the order of the Principal Commissioner was set aside and the matter was remanded back to the Principal Commissioner for a fresh consideration and decision on merit in accordance with law. 25. Mr. Prasad has relied upon the decision of the Supreme Court in Goetze (India) Ltd. (supra 2). In that case, after filing of return, the assessee sought to make a claim for deduction by way of a letter addressed to the assessing officer. Assessing officer disallowed it on the ground that there was no such provision in the Act allowing amendment in the return of income without filing a revised return. This was carried forward in appeal before the Commissioner of Income Tax (Appeals) who had allowed the appeal of the assessee. On further appeal before the Income Tax Appellate Tribunal by the Revenue, the order of Commissioner of Income Tax (Appeals) was set aside. Ultimately the matter reached the Supreme Court. Supreme Court noted that the decision rendered by the Income Tax Appellate Tribunal was under Section 254 of the Act. Therefore, it deals with power of the Income Tax A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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