TMI Blog2014 (1) TMI 492X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction and interfere in the matter, is a matter of discretion. It is certainly a judicial discretion vested in the Commissioner, to be exercised in accordance with law. Power under Section 264 of the Act, is wide enough, to include rectification of a “bonafide” error committed by an assessee, while claiming exemptions, under the Act - The Commissioner should have in the exercise of his revisional power under Section 264 of the Act, decided the petition, filed by the petitioner, on merits - Decided in favour of petitioner. - Civil Writ Petition No.1818 of 1995 - - - Dated:- 11-10-2013 - MR. RAJIVE BHALLA AND MR. DR. BHARAT BHUSHAN PARSOON, JJ. For the Petitioner: Mr. Alok Mittal, Advocate For the Respondent: Mr. Vivek Sethi, Advocate, RAJIVE BHALLA, J. The petitioner prays for issuance of a writ of certiorari quashing order dated 24.10.1994 (Annexure P-5), passed by the Commissioner of Income Tax, Jalandhar, dismissing a petition filed under Section 264 of the Income Tax Act, 1961 (hereinafter referred to as 'the Act'). Counsel for the petitioner submits that the petitioner sold agricultural land situated at Jalandhar, on 25.05.1990 and during the same finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the revenue submits that power under Section 264 of the Act is limited to rectifying errors committed by an Assessing Officer. The failure of the assessee to claim exemption under Section 54-B of the Act, before the Assessing Officer, disentitles the petitioner to any relief under Section 264 of the Act. Counsel for the revenue relies upon a judgment of Jammu and Kashmir High Court in M.Qasim Brothers v. Commissioner of Income Tax and another, 1991 ITR, 675 and submits that the circular relied by the petitioner does not apply to the present case. We have heard counsel for the parties and perused the impugned order. The questions that fall for an answer are the scope and ambit of Section 264 of the Act and whether failure to claim an available exemption, before the Assessing Officer, prohibits an assessee from filing a petition or the Commissioner from exercising power under Section 264 of the Act. Chapter-XX-E of the Act contains two significant provisions, namely, Section 263 and 264. Section 263 of the Act, empowers the Commissioner to revise orders that are erroneous and prejudicial to the interest of the revenue, whereas Section 264 of the Act empowers the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear in which such application is made by the assessee for revision. Explanation. In computing the period of limitation for the purposes of this subsection, the time taken in giving an opportunity to the assessee to be re-heard under the proviso to section 129 and any period during which any proceeding under this section is stayed by an order or injunction of any court shall be excluded. (7) Notwithstanding anything contained in subsection (6), an order in revision under subsection (6) may be passed at any time in consequence of or to give effect to any finding or direction contained in an order of the Appellate Tribunal, [National Tax Tribunal,] the High Court or the Supreme Court.] Explanation 1. An order by the Commissioner declining to interfere shall, for the purposes of this section, be deemed not to be an order prejudicial to the assessee. Explanation 2. For the purposes of this section, the 24[Deputy Commissioner (Appeals)] shall be deemed to be an authority subordinate to the Commissioner. Section 264 confers power upon a Commissioner to revise proceedings or orders subject however to restrictions, prescribed therein. A Commissioner, may either suo-motto or an ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relief of the kind pleaded by the assessee and in denying jurisdiction. We hold, that even though a mistake was committed by the assessee and it was detected by him after the order of assessment, and the order of assessment is not erroneous, none the less it is open to the assessee to file a revision before the Commissioner under Section 264 of the Act and claim appropriate relief. But it should not be forgotten that the power to be exercised under Section 264 is a revisionary one. The limitations implicit in the exercise of such power are well known. The jurisdiction is discretionary. Whether in a particular case, on the basis of facts disclosed, the Commissioner will exercise his jurisdiction and interfere in the matter, is a matter of discretion. It is certainly a judicial discretion vested in the Commissioner, to be exercised in accordance with law. We are not called upon to pronounce on the scope and amplitude of the revisional power. The only question mooted for our consideration in this case is whether the Commissioner has got revisional jurisdiction at all, where the assesse having included the income for assessment, can claim the relief of weighted deduction under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed a petition under Section 264 of the Act, praying that as he had purchased agricultural land during the previous year, preceding the assessment year and was prevented by a bonafide error from claiming exemption, the exemption may be allowed under Section 54-B of the Act. The Commissioner of Income Tax, Jalandhar, placed reliance upon a judgment in M.Qasim Brothers v. Commissioner of Income Tax and another(supra) and dismissed the petition by holding that Section 264 of the Act cannot be invoked as the petitioner did not raise the plea for exemption, before the Assessing Officer whether in the original or in the revised return. The revenue does not deny that the petitioner sold and purchased land during the previous year, relevant to assessment year and but for his error is not raising such a plea, before the Assessing Officer, was entitled to benefit, under Section 54-B of the Act. Thus, the only assertion put forth by the revenue is that as the petitioner did not rely upon the purchase of agricultural land, whether in his original or in revised return, the Commissioner has rightly refused to exercise power under Section 264 of the Act. As we have already held that power und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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