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TMI Blog2014 (2) TMI 1116X X X X Extracts X X X X X X X X Extracts X X X X ..... accepted the return filed by the petitioner in toto and accordingly, issued an order/intimation dated 13.2.2003 under Section 143 (1) of the Act in favour of the petitioner. As a result of acceptance of the return, the petitioner became entitled to claim the refund for a sum of Rs.87, 969/- including interest on the said sum of Rs. 6068/-. It was accordingly paid to the petitioner. The petitioner then noticed two mistakes in their return. In the first place, it was noticed that it had wrongly claimed disallowance under Section 43 (b) for Rs. 80, 77,832/- in place of Rs. 11, 32,623/-. In other words, according to petitioner, instead of claiming disallowance of Rs. 11, 32,623/- under Section 43(b), they claimed disallowance of Rs. 80, 77,832/-. In the second place, it was noticed that a sum of Rs.55,555/- spent by the petitioner during the assessment years in question for installation of DG sets was claimed as revenue receipt whereas, according to it, the same should have been claimed as capital receipt. The petitioner, therefore, filed a revision petition under Section 264 of the Act before the Commissioner of Income Tax, Guwahati -II on 30.1.2004 seeking revision of the order/int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the petitioner and the learned Standing Counsel for the Income Tax Department. Learned senior counsel for the petitioner, placing reliance on the law laid down in 122 ITR 610 (Guj), 132 ITR 619 (All),150 ITR 105 (Ker), 211 ITR 925 (Guj), 251 ITR 873 (Guj), 262 ITR 638 (Cal), 262 ITR 633 (Cal) 77 ITR 6 (SC), 210 ITR 799 (Guj), 276 ITR 165 (Guj), 339 ITR 310 (Guj), 258 ITR 401 (Del), 267 ITR 289 (Ker), 349 ITR 404 (Bom), contended that the Commissioner erred in rejecting the petitioner's revision as not maintainable. It was his submission that applying the principle laid down in the decisions cited at the bar, the revision filed by the petitioner under section 264 should have been held maintainable and, therefore, it should have been entertained for deciding the same on its merits. In reply, learned counsel for the respondent (revenue) supported the impugned order and prayed for its upholding. Having heard the learned counsel for the parties and upon perusal of the record of the case, we find force in the submissions of learned counsel for the petitioner and hence, are inclined to allow the writ petition, in part, as indicated infra. In our considered opinion, the case decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer, the Commissioner may, either of his own motion or on an application by the assessee, call for the record of any proceeding under the Act and pass such order thereon not being an order prejudicial to the assessee, as he thinks fit. Sub-Sections (2) and (3) of S.264 provide for limitation of one year for the exercise of this revisional power, whether suo motu, or at the instance of the assessee. Power is also conferred on the Commissioner to condone delay in case he is satisfied that the assessee was prevented by sufficient cause from making the application within the prescribed period. Sub-section (4) provides that the Commissioner has no power to revise any order under S.264(1): (i) while an appeal against the order is pending before the AAC, and (ii) when the order has been subject to an appeal to the Income-Tax Appellate Tribunal. Subject to the above limitation, the revisional powers conferred on the Commissioner under s.264 are very wide. He has the discretion to grant or refuse relief and the power to pass such order in revision as he may think fit. The discretion which the Commissioner has to exercise is undoubtedly to be exercised judicially and not arbitrary according ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Commissioner to revise the order of the ITO by reducing the assessed income by Rs.20,000. Rule made absolute accordingly. Respondent to pay the costs to the petitioner." As observed supra, we find no good ground to take a different view as taken by the Gujarat High Court and are completely in agreement with the same. Indeed, learned counsel for the respondent ( revenue ) was not able to cite any case taking a contrary view in favour of the revenue and nor was able to point out any error or distinguishable features in the view taken by the Gujarat High Court. We may also note that the law laid down by Gujarat High Court was consistently followed by the Gujarat High Court in subsequent decisions in later years and also by other High Courts cited at the bar by the learned counsel for the petitioner. Apart from the aforesaid facts, we are also of the considered view that scope of revision under Section 264 is wider and different than the scope of revisionary powers exercised by the Commissioner under Section 263 ibid. It is clear from a mere reading of these two Sections (263 and 264). In our view, an order/ intimation passed under Section 143(1) passed by the Assessing Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X
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