TMI Blog2016 (9) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 143, the Assessing Officer had the power of making prima facie adjustments, the legislature provided for an explanation that an intimation sent to the assessee under subsection( 1) would be deemed to be an order for the purposes of section 264 with effect from 1.6.1999. Such explanation has been deleted giving a clear indication that such deeming fiction would no longer apply. In other words, as long as the Assessing Officer had the power to make prima facie adjustments while processing the returns of the assessee under section 143(1) of the Act, by a deeming fiction, it was considered as an order for the purpose of section 264 of the Act and, therefore, revisable. Once with amendment of section 143, such powers were rescinded, it was thereafter, no longer necessary to provide for any refund against a mere intimation under section 143(1) and a corresponding change was therefore, made by deleting the explanation and withdrawing the deeming fiction. We therefore, accept the view of the Commissioner that against the intimation under section 143(1) of the Act, the revision petition was not maintainable. In terms of section 154 of the Act, it may have been possible for the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 004, the petitioner had made a provision for commission for performance guarantee of ₹ 69.50 lacs payable to the suppliers and also provided for aggregate commission of ₹ 1.18 crores (rounded off) for the purchases. Since this expenditure was allowable under section 37 of the Income Tax Act, 1961( the Act for short), the same was debited to Profit and Loss account and the business profit was accordingly computed. According to the petitioner, however, while computing the profit and loss of the business, due to misunderstanding, these amounts totalling to ₹ 1.87 crores (rounded off) were added back while computing total income. According to the petitioner, thus the returned income of ₹ 3.31 crores (rounded off) included this sum of ₹ 1.87 crores erroneously added. In the statement of income accompanying the return for the assessment year 2003-2004, the petitioner had put the following note : During the year under review the assessee company has made provision for commission for performance guarantee given to suppliers on behalf of the company of ₹ 69,50,000/and has also provided for commission on purchase aggregating to ₹ 1.18,21,456/. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.7.2010. The Court was of the opinion that if the Commissioner desired to dismiss the revision petition on the ground of delay, petitioner should have been put to notice thereof. In the process, the petitioner had no opportunity to explain the delay. The Court therefore, gave the following directions : For the foregoing reasons, the petition succeeds and is accordingly allowed. The impugned order dated 03.12.2009 (AnnexureC) made by respondent Commissioner is hereby quashed and set aside. The revision application bearing File No.: CITII/ Jud/Tech/264/02/200910 is restored to the file of the Commissioner. The Commissioner shall decide the same afresh in accordance with law after giving the parties an opportunity of hearing. If the Commissioner is of the view that the application under section 264 of the Act is barred on the ground of delay, the Commissioner shall decide the same as a preliminary issue after putting the petitioner to notice and giving it an opportunity of hearing. Rule is made absolute accordingly. 7. The Commissioner thereupon issued a show cause notice dated 6.10.2010 in which he pointed out to the petitioner that the refund order dated 31.3.2005 was dispa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also of the opinion that intimation under section 143(1) of the Act was not a revisable order. The Commissioner relied on decision of Karnataka High Court in case of Avasaraja Automation Ltd. v. Deputy Commissioner of Incometax reported in (2004) 269 ITR 163, in which referring to deletion of explanation to section 143 with effect from 1.6.1999, it was held that petition under section 264 of the Act against intimation in respect of assessment year 2003-2004 is not maintainable but the rights already vested for earlier years would not be taken away by amendment. 11. It is this order, the petitioner has challenged in the present petition. 12. Appearing for the petitioner, learned counsel Shri J.P. Shah raised the following contentions : 07.09.2016 1) The petitioner had sufficiently explained the delay in filing the revision petition. Question of delay should have been considered liberally. The Commissioner ought to have appreciated that the petitioner had not received the intimation from the Assessing Officer of acceptance of the return. The Commissioner committed a serious error in holding that the petitioner failed to show sufficient cause in late filing of the rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TR 643, counsel submitted that the action of the department in retaining the excess tax would shake the credibility of the department. 13. On the other hand learned counsel Mrs. Mauna Bhatt for the department opposed the petition raising the following contentions : 1) There was sufficient material on record to suggest that at the relevant time, the petitioner was served with refund order and the intimation under section 143(1) of the Act. The revision petition was filed several years later which was clearly barred by limitation. The explanation offered for such delay was not satisfactory. The Commissioner therefore, correctly dismissed the revision petition on the ground of limitation. 2) The revision petition was otherwise also not maintainable. The intimation under section 143(1) of the Act is neither an order of assessment nor an order which in terms of section 264 of the Act is revisable. It is a mere administrative action of intimating to an assessee that his return is accepted. This would be clear from the legislative changes made in section 143(1) of the Act with effect from 1.6.1999 when the explanation was dropped. She submitted that prior to 1.6.1999 under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner to show on what basis the revision petition is filed. If the petitioner had not received intimation under section 143(1) of the Act, would such petition not be premature? Instead of replying to said notice from the Commissioner, the petitioner filed a fresh on 13.4.2009. Such petition at one stage was dismissed by the Commissioner as delayed. The High Court however, asked the Commissioner to put the petitioner to notice and then decide the question of limitation. Thereupon, the petitioner elaborated the grounds of delay contending interalia that the intimation under section 143(1) of the Act dated 31.3.2005 was served on the petitioner for the first time on 27.3.2009. Prior to such date, the company was not served with any such intimation. Along with refund order, no such intimation was attached. Thus there is no delay in filing the revision petition. Even if it is taken that such order of intimation was served on or before 11.5.2005, according to the petitioner, late filing of the revision petition was due to good and sufficient cause. The Commissioner has power to condone such delay. 18. From the above it can be seen that after the petitioner received the refund order whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tance of return as far back as in May 2005. The first attempt to file revision petition, made in December 2008, was thus merely grossly belated. The only explanation that the petitioner offered was that since the intimation was served much later, there was no delay at all. However, if it was presumed that the limitation began to run from May 2005, what prevented the petitioner from filing the revision petition earlier, there is no explanation at all. The petitioner merely referred to the power of the Commissioner to condone the delay for good and sufficient cause being shown, but did not elaborate, in the present case, what such good and sufficient cause was. The Commissioner in our opinion therefore, committed no error in holding that the petitioner had failed to show sufficient cause for condoning the delay. Question (2) 20. Regarding question no.2, this issue pertains to maintainability of the revision petition. As noted, under subsection( 1) of section 264, the Commissioner has the power to revise any order other than an order to which section 263 of the Act applies, passed by an authority subordinate to him by calling for record of the proceedings and make such inquir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction( 1) or subsection (1B) shall be deemed to be an order for the purposes of section 264. 25. This explanation came to be deleted with effect from 1.6.2009 when section 143 itself underwent major changes. It can thus be seen that during the period when under subsection( 1) of section 143, the Assessing Officer had the power of making prima facie adjustments, the legislature provided for an explanation that an intimation sent to the assessee under subsection( 1) would be deemed to be an order for the purposes of section 264 with effect from 1.6.1999. Such explanation has been deleted giving a clear indication that such deeming fiction would no longer apply. In other words, as long as the Assessing Officer had the power to make prima facie adjustments while processing the returns of the assessee under section 143(1) of the Act, by a deeming fiction, it was considered as an order for the purpose of section 264 of the Act and, therefore, revisable. Once with amendment of section 143, such powers were rescinded, it was thereafter, no longer necessary to provide for any refund against a mere intimation under section 143(1) and a corresponding change was therefore, made by deleting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Commissioner concerning both the years submitting that the assessee was entitled to deduction under section 80HHC of the Act, but such deduction was not claimed. Under such revision petition, the assessee requested the Commissioner to grant such deduction. Since the Commissioner refused, the assessee filed the petition. In such background, the Division Bench of this Court referring to and relying upon the decision in case of C. Parikh Co. (supra) and other similar decisions, held that the Commissioner ought to have examined the claim of the petitioner, even though no such claim was made before the Assessing Officer. In this case, once again the question of maintainability of a revision petition against a mere intimation under section 143(1) of the Act, did not arise. As noted, for the assessment year 1996-1997, the assessment was framed after scrutiny. For the year 1997-1998, explanation to section 143 would apply, making even the intimation deemed to be an order for the purpose of section 264 of the Act. 28. In case of Assam Roofing Ltd. (supra), the Division Bench of Gauhati High Court for the return of assessment year 2002-2003 did hold that even an intimation un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approach the Assessing Officer and claim to have paid excess tax. A return filed by the assessee goes through the process of assessment. Such assessment could be after scrutiny or the return can be accepted without any contest by a mere sending of intimation to the assessee. The assessee cannot simply ignore all other statutory provisions of rectification, revision and appeal, to contend that at any point of time, if he is able to demonstrate that there has been an excess payment of tax, the Assessing Officer is obliged to refund the same. Such an argument would ignore the provision under section 242 of the Act which provides that in a claim under Chapter XIX pertaining to refund in which section 237 is also included, it shall not be open for the assessee to question the correctness of any assessment or other matter decided which has become final and conclusive or ask for a review of the same and the assessee shall not be entitled to any relief on such claim, except refund of tax wrongly paid or paid in excess. Against the return filed by an assessee, before 1.6.1999, a revision petition was maintainable. If a claim which was not made, had to be raised, it was possible for the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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