9911796707
TMI Blog2013 (3) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... filed on 09.05.2006 before the Commissioner of Income Tax, Faizabad respondent No. 2 for the Assessment Year 2003-04 stands allowed. The petitioner also seeks a writ, order or direction, declaring the time limit of one year prescribed under section 264(6) of the Income Tax Act, 1961 as mandatory in nature and directing the Income Tax Officer, Basti respondent No. 3 not to take any coercive measure for realising the demand arising out of the Assessment Order till the pendency of the revision application. Briefly stated, the facts giving rise to the present petition are as follows. The petitioner is a partnership firm engaged in the business of manufacture and sale of rice and trading of paddy, wheat, rice oil-cake, etc. For the Financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner. Left with no other alternative, the petitioner has approached this Court for redressal of its grievance. In the counter affidavit filed by the respondents, it has been stated that the provisions of sub-section (6) of section 264 of the Act are directory in nature and not mandatory and, if the period of one year has expired, the Commissioner of Income Tax does not become functous officio to decide a revision. We have heard Sri Krishna Agrawal, learned counsel for the petitioner and Sri Govind Krishna, learned senior standing counsel appearing for the respondents. Sri Krishna Agrawal, learned counsel appearing for the petitioner submitted that as the Commissioner can decide a revision preferred by an assessee within a period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Income Tax Act, 1922 which commands the Tribunal to make a reference within 90 days. We have given our thoughtful consideration to the various plea raised by the learned counsel for the parties. We find that by Finance (No. 2) Act, 1998 with effect from 01.10.1998, sub-section (6) in section 264 of the Act was inserted in the Act. It reads as follows" "(6) On every application by an assessee for revision under this sub-section, made on or after the 1st day of October, 1988, an order shall be passed within one year from the end of the financial year in which such application is made by the assessee for revision." The scope and effect of newly inserted sub-section (6) of section 264 has been elaborated by the Central Board of Direct Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nactments, namely, the Wealth-tax Act, the Gift-tax Act, the Interest-tax Act and the Expenditure-tax Act. 62.4 These amendments have taken effect from the 1st day of October 1988 [Sections 60, 71, 76, 80 and 83]." From a reading of the aforesaid provisions, we find that if a revision has not been decided by the Commissioner within the stipulated period, it does not mean that the revision stands allowed. The decision relied upon by the learned counsel for the petitioner in the case of Rohit Organics (supra) would not be applicable as that was a case dealing with an application seeking extension of time for filing the return and if no orders have been passed on the said application, the Court took the view that extension of time shall dee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... marised to the effect that in order to declare a provision mandatory, the test to be applied is as to whether non-compliance of the provision could render entire proceedings invalid or not. Whether the provision is mandatory or directory, depends upon the intent of Legislature and not upon the language for which the intent is clothed. The issue is to be examined having regard to the context, subject matter and object of the statutory provisions in question. The Court may find out as what would be the cnsequence which would flow from construing it in one way or the other and as to whether the Statute provides for a contengency of the non-compliance is visited by small penalty or serious consequence would flow therefrom and as to whether a pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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