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2019 (7) TMI 303 - MADRAS HIGH COURTCondonation of delay - revision u/s 264 - filed beyond a period of one year from the date of assessment and was dismissed by the CIT, refusing to condone the delay - CIT has powers to condone the delay u/s 264(3) - issue relates to income earned outside India reported in return on wrong advice of auditor - original return was belatedly filed hence revise return was rejected by AO HELD THAT:- As would be evident from the chronicle of events which have been alluded to supra with specificity, it will be clear that one year time frame for filing application / petition u/s 264 expired on 22.10.2011, as the order of assessment u/s 143(1) came to be passed on 23.10.2010. Within this one year, i.e., on 05.08.2011 itself, writ petitioner had taken the first step to have his ₹ 19.84 lakhs excluded / exempted qua said AY by filing a revised return. This revised return was rejected u/s 139 (5) on the technical ground that original return was not filed in time. Therefore, this brings to light that writ petitioner has taken his first step qua section 264 application / petition well within the one year time frame. Thereafter, post rejection of revised return, writ petitioner did not go into slumber. Further, writ petitioner filed rectification, on which no orders were passed. Without passing orders on rectification, a demand notice was issued triggering a second rectification from writ petitioner which came to be dismissed. To be noted, a demand was made on 31.1.2018, second rectification request was filed by writ petitioner on 25.2.2018, second rectification having been dismissed / rejected on 2.7.2018, writ petitioner ultimately filed a petition / application u/s 264. There is one other aspect which has weighed in the mind of this Court for acceding to the prayer of writ petitioner unlike other cases / case laws, particularly Viswanathan Silk Centre [1991 (10) TMI 7 - MADRAS HIGH COURT] , as third respondent has said nothing on merits of the matter in case on hand. As section 264 petition / application has not been examined on merits, in the considered opinion of this court, by acceding to the prayer in the instant writ petition and directing third respondent to consider section 264 petition / application on merits, ends of justice would be met as it will ensure that writ petitioner's case is tested on merits. To be noted, the submission of writ petitioner that there are judgments (supporting writ petitioner's exemption plea) rendered by more than one Hon'ble High Court with regard to exemption u/s 5, which is the crux and gravamen of petitioner's section 264 petition / application in instant case, buttresses and bolsters writ petitioner's plea to have section 264 petition / application tested on merits. This Court is convinced that this is a case where the prayer of writ petitioner deserves to be acceded to. The matter is remitted back to third respondent to decide the writ petitioner's application / petition u/s 264 on merits.
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