TMI Blog2016 (10) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... the delay, there was no reason why such appeal should have been withdrawn. Further, even after withdrawal of the appeal from the Tribunal on 19.02.2009, the petitioner filed the revision petition nearly 10 months later on 19.12.2009. This further period of delay is nowhere explained except for the petitioner stating in general that it required to collect documents and orders. The Commissioner was therefore justified in not condoning the delay. The question of maintainability of the revision petition before the Commissioner is a contentious issue and we would reserve answer to such a question for a better case. In the present petition, we are not inclined to enter into this arena since we have already held that the revision petition was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R : MRS SWATI SOPARKAR, ADVOCATE FOR THE RESPONDENT : MRS MAUNA M BHATT, ADVOCATE ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. The petitionerassessee has challenged an order dated 05.01.2010 passed by the Commissioner of Incometax, rejecting the petitioner's revision petition under section 264 of the Income Tax Act, 1961 ('the Act' for short). Brief facts are as under. 2. The petitioner is a partnership firm and is engaged in the business of providing Angadia service. A search was carried out by Enforcement Directorate under section 37 of the Foreign Exchange Management Act, 1999, in the luggage van of Aashram Express on 09.07.2001. This resulted into seizure of cash, bullion and jewellery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , on 29.12.2009, the petitioner filed a revision petition before the Commissioner under section 264 of the Act. In such revision petition, the petitioner challenged the addition of ₹ 15.50 lakhs and corresponding tax imposed by the Assessing Officer in the order of assessment. In the memo of revision petition, the petitioner contended that this issue was not subject matter of appeal before the Appellate Commissioner or the Tribunal. The revision petition qua this issue was therefore, maintainable. Regarding the delay, the petitioner contended as under: Thus, the delay upto the date of communication of order of the ITAT was on account of applicant's bonafide belief that its appeal before the Hon'ble ITAT was maintainable i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the order of assessment was already made subject matter of appeal before the Commissioner and the Tribunal. Revision petition was therefore not maintainable. It is this order the petitioner has challenged in the present petition. 7. Learned counsel Shri Soparkar for the petitioner vehemently contended that the Commissioner committed a serious error in holding that the revision petition was not maintainable. He submitted that the addition of ₹ 15.50 lakhs made by the Assessing Officer, was never subject matter of the appeal before the Commissioner (Appeals) or before the Tribunal. Bar of revision under section 264 of the Act would therefore not apply to such an issue. He further submitted that the Commissioner committed an err ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it for the outcome of such proceedings. His contention that he was under a bonafide belief that he would succeed in such proceedings, is therefore, not in consonance with his averment that such issue never formed part of the subject matter of the appeal proceedings. On the other hand, if the assessee was following the appeal route as is contended while explaining the delay, there was no reason why such appeal should have been withdrawn. Further, even after withdrawal of the appeal from the Tribunal on 19.02.2009, the petitioner filed the revision petition nearly 10 months later on 19.12.2009. This further period of delay is nowhere explained except for the petitioner stating in general that it required to collect documents and orders. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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