TMI Blog2014 (11) TMI 951X X X X Extracts X X X X X X X X Extracts X X X X ..... s been taxed twice for the amount of ₹ 11,41,607/- under the head installation charges relating to KG Hospital – thus, the matter is remitted back to the CIT for fresh consideration in exercise of power u/s 264 – Decided in favour of assessee. - W. P. No. 13408 of 2010 - - - Dated:- 12-11-2014 - T. S. Sivagnanam,JJ. For the Petitioner : Mr. T. N. Seetharaman For the Respondent : Mr. T. Pramod Kumar Chopda ORDER In this writ petition, the petitioner seeks a Writ of Certiorarified Mandamus, to quash the order dated 31.3.2010 passed by the respondent Commissioner of Income Tax-VII, Chennai, under Section 264 of the Income Tax Act, 1961 (hereinafter shortly referred to as Act) for the Assessment Year 2002-03 and to direct the respondent to entertain and consider the Revision Petition filed by the petitioner on merits. 2.The facts, which led to filing of this writ petition, are as follows: (a)The petitioner is a Firm, carrying on business of supplying hospital equipments and they filed their return admitting total income of ₹ 6,14,372/- for the assessment year 2001-02. In the course of the assessment proceedings, there was a difference of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment, whichever is earlier. Keeping the said provision in mind, the respondent stated that the assessee filed the revised return on 24.3.2005, which was beyond the time limit stipulated under section 139(5) of the Act. As such, filing of the revised return is not within the scope of Section 139(5) and no action need to be taken on such return. Therefore, the respondent observed that the Assessing Officer did not take any action on the revised return filed by the assessee for the assessment year 2002-03 and the same is in confirmity with the law and no illegality can be attributed to such action of the Assessing Officer. Accordingly, the respondent dismissed the Revision Petition as devoid of any merits. The said order is challenged in this writ petition. 3.The learned counsel for the petitioner contended that the petitioner has been taxed twice for the amount of ₹ 11,41,607/- under the head installation charges relating to KG Hospital and the said fact has not been considered by the respondent. It is further submitted that the respondent failed to take into consideration the Circular issued by the Board in Circular No.14 (XL-35) dated 11.4.1955, by which, certain instruc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preciation, Section 264 of the Act is extracted below: 264.(1) In the case of any order other than an order to which section 263 applies passed by an authority subordinate to him, the Commissioner may, either of his own motion or on an application by the assessee for revision, call for the record of any proceeding under this Act in which any such order has been passed and may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act, may pass such order thereon, not being an order prejudicial to the assessee, as he thinks fit. (2) The Commissioner shall not of his own motion revise any order under this section if the order has been made more than one year previously. (3) In the case of an application for revision under this section by the assessee, the application must be made within one year from the date on which the order in question was communicated to him or the date on which he otherwise came to know of it, whichever is earlier : Provided that the Commissioner may, if he is satisfied that the assessee was prevented by sufficient cause from making the application within that period, admit an application made after the expiry of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er thereon, not being an order prejudicial to the assessee, as he thinks fit. The language employed in Section 264 gives wider powers to the Commissioner and such power may be exercised either suo motu or on an application by the assessee. The power of revision includes the power to call for the record of any proceeding under the Act, in which, any order has been passed and the Commissioner is empowered to make inquiry or cause inquiry to be made and subject to the provisions of the Act, pass order thereon, not being an order prejudicial to the assessee. As such, the language of statute does not restrict the powers of the Commissioner in any manner. 8.When that being the scope of Section 264, the manner in which, such powers have to be exercised by the Officers of the department is dealt with in the circular issued by the Board. In this regard, it is relevant to look into the Circular No.14 (XL-35) dated 11.4.1955, which issued certain guidelines, which read as follows: Officers of the Department must not take advantage of ignorance of an assessee as to his rights. It is one of their duties to assist a taxpayer in every reasonable way, particularly in the matter of claiming ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 005 was valid. While considering this issue, the Commissioner relied on Section 139(5) of the Act and observed that the revised return was filed beyond the time limit and therefore, the Assessing Officer did not take any action on the revised return and the same was in confirmity with the law. In my considered view, going by the language of Section 264, the Commissioner should have gone into the factual aspect as to whether the assesssee was taxed twice for the said amount and the same should have been done, in the light of the wider powers conferred on the Commissioner, as discussed by this Court in the preceding paragraphs. 10.In fact, in the decision reported in (2004) 140 TAXMAN 156 (J K) (Sneh Lata Jain v. Commissioner of Income Tax) (cited supra), which is identical as that of the present case, the assessee had filed her return under section 139 and the Assessing officer processed return under section 143(1) and raised a demand for a certain amount. Thereafter, the assessee approached the revisional authority by raising a plea of non-disclosure of certain facts in the income tax return and claiming benefits. It is observed by the Jammu and Kashmir High Court that the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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