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TMI Blog2025 (2) TMI 656X X X X Extracts X X X X X X X X Extracts X X X X ..... es of Section 264 - In Gopal Vazirani [2024 (3) TMI 1017 - BOMBAY HIGH COURT] another co-ordinate Bench, has held that an intimation u/s 143 (1) was amenable to revisional jurisdiction under Section 264 of the IT Act. In Smita Rohit Gupta [2023 (9) TMI 220 - BOMBAY HIGH COURT] another Co-ordinate Bench, after distinguishing the decision of the Hon'ble Supreme Court in Rajesh Jhaveri Stock Brokers (P) Ltd [2007 (5) TMI 197 - SUPREME COURT] held that the revision would be maintainable against an intimation under Section 143 (1) of the IT Act, 1961. Accordingly, the second reason based upon which the commissioner declined to exercise the revisional jurisdiction is also not sustainable. No such universal inference can be drawn in tax matters. In any event, the revisional authorities exercising the revisional jurisdiction must look into this matter since this is a case where the revisional authority has virtually declined to exercise the jurisdiction vested in it. We have found that the two reasons the revisional authority declined to exercise its jurisdiction were untenable. Therefore, the impugned order dated 12 February 2021 is liable to be set aside and is hereby set aside. Peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that lies to the Commissioner (Appeals) but has not been made and the time within which such appeal may be made has not expired or second, where the assessee has not waived his right of appeal. What emerges is that in a situation where there is an appeal that lies to the Commissioner appeals and which has not been made and the time to make such an appeal has not expired in that case the Principal Commissioner or Commissioner cannot revise any order in respect of which such appeal lies. The language is quite clear that the two conditions are cumulative viz: there should be an appeal which lies but has not been made and the time for filing such appeal has not expired in such a case the Principal Commissioner cannot revise. However, if the time for making such an appeal has expired then it would be imperative that the Principal Commissioner would exercise his powers of revision under section 264. The other or second situation is when the Petitioner assessee has not waived his right of appeal; even in such a situation the Commissioner cannot exercise his powers of revision under section 264 (4) (a). In clause (a) of section 264 (4), in the language between filing of an appeal and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cretionary jurisdiction of high court, in our view, is uncalled for and would be wholly avoidable. The provisions in the Income-tax Act for rectification, revision under section 264 are meant for the benefit of the assessee and not to put him to inconvenience. That cannot and could not have been the object of these provisions. We do not find any statement either in the impugned order or in the reply to state that the case of the Petitioner seeking remedy of the purported error was not bona fide...." 8. The revisional authority's reason for declining to exercise revisional jurisdiction is contrary to the law, as explained by Sayed (supra). 9. In so far as, the second reason is concerned, another Coordinate Bench in the case of Commissioner Of Income-Tax vs Anderson Marine & Sons (P.) Ltd. 2004 139 Taxman 16 (Bombay) has held an intimation under Section 143 (1) is an order for the purposes of Section 264 of the I.T Act, 1961 and hence, the same is revisable. 10. The discussion relevant to the above issue in paragraph No. 6, which is transcribed bellow for the convenience of reference:- "....6. It is relevant to note that the Tribunal has accepted the argument canvassed on b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment. Indeed, the order passed under Sub-section (3) of section 143 is 'regular assessment' within the meaning of section 2 (40) of the Act which defines 'regular assessment' as meaning the assessment made under Sub-section (3) of section 143 or section 144, Section 2 (40) which defines 'regular assessment', was amended by the Finance Act, 1990, with effect from April 1, 1989, which corresponds to the amendment effected in section 143 (1) of the Act. In other words, the procedure for assessment has been simplified so as to dispense with a regular assessment order to be passed by the Assessing Officer in every case. The question is, whether acceptance or acknowledgement of the return filed by the assessee and intimation sent for the purpose of section 143 (1) is an assessment? The answer, in our opinion, is in the affirmative. It is nevertheless 'assessment. Assessment has been defined in section 2(8) as 'assessment includes reassessment'. Section 143, as a whole, is a provision regarding assessment. The modalities and procedure for assessment have been provided for in sub-section (1), which is different from the procedure under sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er section 139 of the Act is filed by the assessee. Section 142 precedes section 143 and is not restricted only to the assessment order to be passed within the meaning of section 143(3) of the Act. In other words, on the filing of the return under section 139, if the Assessing Officer has reason to believe that an inappropriate claim has been made by the assessee in the return, before sending the intimation under section 143 (1) he can make such inquiry and if he is satisfied in that inquiry about the inappropriate claim of the assessee, he can proceed in terms of sub-section (2) and sub-section (3) of section 143. This appears to be the scheme regarding the procedure of assessment of the return filed by the assessee. Accordingly, as already observed by us earlier, in both situations, it is the decision of the Assessing Officer whether to send intimation or to proceed under sub-section (2) of section 143. That is surely a process of taking a decision in the matter. Sending the intimation being a decision of acceptance of self-assessment is, therefore, in the nature of the order passed by the Assessing Officer for the purpose of section 263 of the Act. In the other situation, the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Allahabad High Court and the Madhya Pradesh High Court. Although the respondent-assessee may be justified in contending that the decisions of the Madras High Court in Chidambaram Construction Co.'s case (supra), as well as of our High Court in the case of Rajkumar Dipchand Phade (supra) are not applicable because in those cases, the power was exercised under section 263 in respect of summary assessment made under unamended section 143 (1) of the Act, however, for the reasons already recorded above, we find no substance in the argument of the respondent-assessee and in particular the reasons recorded by the Tribunal in taking the view that the Commissioner could not have exercised jurisdiction under section 263 in respect of the assessment under section 143 (1) as applicable after April 1, 1989. As the Tribunal has proceeded to decide the matter on the solitary ground referred to above, it is not necessary for us to examine any other contention. On the other hand, we would think it appropriate while setting aside the impugned decision, to remit the case to the Tribunal to decide the same in accordance with law on merit....." 11. In Gopal Vazirani Vs. Principal Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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