TMI Blog2010 (10) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution of India challenging the order dated 29-3-2007 passed by the respondent no. 1. 2. Petitioners' Case 2.1 The case of the petitioner is that all the writ petitioners opted for the Voluntary Retirement Scheme (VRS). While filing the returns, the petitioners claimed exemption under section 10(10C) of the Income-tax Act, 1961 (1961 Act). The said benefit was given to the petitioners but thereafter the case was reopened under section 147 of the 1961 Act and the exemption granted was withdrawn. The petitioners aggrieved by the said assessment under section 147 of the 1961 Act filed an application under section 264 of the 1961 Act and by order dated 29th March, 2007 the application was rejected, hence the instant application h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould be deducted and that the order under challenge is one passed under section 264 of the 1961 Act and no appeal has been filed as the time to file the appeal has expired. From an order passed under section 264 of the 1961 Act, no writ lies section 264 empowers the Commissioner to pass an order "not being an order prejudicial to the assessee". According to Explanation-1 to section 264 an order of rejection is not an order prejudicial to the assessee. "Prejudicial Order" came up for consideration in CIT v. Tribune Trust [1948] 16 ITR 214 (PC) and JACOB v. Addl. Dy. CAIT [1986] 158 ITR 596 (Ker.) (FB). The order passed by the Commissioner is not prejudicial to the petitioners as the assessment order has not been challenged by which the exem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Petitioner-in-Reply 5.1 Counsel for the petitioner-in-reply submits that there is no provision for an appeal from an order passed under section 264 of the 1961 Act and therefore a writ petition is maintainable. For the said proposition reliance is placed on Ramswarup Bhawsinka v. CIT [1975] 101 ITR 827 (Ori) and Ultramarine Pigments Ltd. v. O.P. Srivastava, CIT [2006] 286 ITR 863 (Bom.). 5.2 Explanation-I is applicable to section 264(7) and not to section 264. No affidavit-in-opposition has been filed, and the allegations are admitted by the respondents. The Reserve Bank of India need not be made a party as no relief is being claimed against the Reserve Bank of India and the money is to be repaid by the Income-tax Department. In Gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been annexed. Therefore, there has been mis-joinder of parties. The voucher has been returned by the petitioner and not by his counsel. The decision in Shammi Bhan' s case (supra), Ramswarup Bhawsinka's case (supra) and Ultramarine Pigments Ltd.' s case (supra) are distinguishable and not applicable to the facts of this case. 7. Conclusion 7.1 Having considered the submissions of the parties for the assessment year 2004-2005 an exemption was claimed by the petitioner under section 10(10C) of the 1961 Act. Such exemption was initially allowed and a refund voucher issued. Subsequently, it was found that the petitioner's employer RBI had deducted tax at source and disallowed the exemption on the ground that its scheme was not as per the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a prejudicial order. 7.2 From the pleadings it is not known why the order dated 29-3-2007 is prejudicial to the writ petitioners. In fact by the said order the position of the petitioner has not worsened. 7.3 No copy of the scheme has also been annexed to appreciate the purport of Clause 6 of the scheme which finds mention in the order dated 29-3-2007. 7.4 The writ petition is maintainable in view of Ramswarup Bhawsinka' s case (supra), but for no pleading of prejudice this application cannot be entertained. 7.5 [2005] 2 CLJ 80 is distinguishable on facts as therein on the principles of violation of natural justice the Court had interfered. In the instant case there is no violation of natural justice. 7.6 There is no dispute with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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