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2016 (10) TMI 52 - GUJARAT HIGH COURT

2016 (10) TMI 52 - GUJARAT HIGH COURT - TM - Maintainability of the revision petition before the Commissioner u/s 264 - Held that:- If the contention of the petitioner is that the question of quantum addition was not part of appeal proceedings before the Commissioner and the Tribunal, the assessee had no reason to wait 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 avermen .....

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g 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 barred by limitation and unexplained delay. There is an addition .....

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me, required evidence could not be located and submitted. Nothing is brought on record to suggest what such relevant evidence the petitioner now has, on the basis of which, such concession could be withdrawn. Learned counsel for the petitioner however, submitted that the maintainability of the revision petition be examined and the merits be left open for the Commissioner to judge. In a writ petition, where we are considering grant of discretionary relief, we refuse to be bound down by the plain .....

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OCATE 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 .....

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tter dated 25.02.2005, the petitioner offered an amount of ₹ 15.50 lakhs by way of income, requesting the authority that the tax on such undisclosed income be adjusted against the seized cash of the assessee. The Assessing Officer thereupon passed an order of assessment dated 01.03.2005, in which, he accepted the assessee's concession of undisclosed income of ₹ 15.50 lakhs and taxed the same at 60% demanding basic tax of ₹ 9.30 lakhs. He added surcharge at the rate of 2% an .....

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al before the Income Tax Appellate Tribunal ('the Tribunal' for short), however, withdrew the same on 19.02.2009. 4. Sometime thereafter, 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 iss .....

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every reason of succeeding the appeal if the matter would have been heard on merits. The delay between the date of communication of order of the ITAT and the date of filing of this revision petition is on account of collecting the appeal documents and other case records from the Office of the Advocate who had represented the matter before the Hon'ble ITAT, thereafter, preparation and compiling of the information required to be submitted along with the revision petition. The delay, being bona .....

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sion of applicant firm is not justified to the extent of ₹ 15,00,000/because at the relevant time required evidence could not be located and submitted and, therefore income was offered for peaceful completion of assessment. 6. The Commissioner rejected the revision petition on two grounds. He was of the opinion that the delay was not properly explained and further that the order of assessment was already made subject matter of appeal before the Commissioner and the Tribunal. Revision petit .....

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264 of the Act would therefore not apply to such an issue. He further submitted that the Commissioner committed an error in not condoning the delay which was otherwise well explained. 8. On the other hand, learned counsel Shri Bhatt for the department opposed the petition contending that the Commissioner has given proper reasons. The petitioner had made a concession to add ₹ 15.50 lakhs by way of undisclosed income. No reasons are cited why such disclosure should be allowed to be withdraw .....

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t the petitioner held a bonafide belief that its appeal before the Tribunal was maintainable and was hopeful of succeeding in such appeal before the Tribunal on merits. To explain the delay, even after withdrawal of appeal before the Tribunal, the petitioner contended that the same occasioned on account of requirement of collection of documents and records. 10. In our opinion, this explanation was wholly insufficient. If the contention of the petitioner is that the question of quantum addition w .....

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ason 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. 11. The question of maintainability of the revision petition before the Commis .....

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