TMI Blog2016 (12) TMI 876X X X X Extracts X X X X X X X X Extracts X X X X ..... r 286 days outside India. The Commissioner exercising powers under Section 264 of the Act of 1961 could have proceeded to grant appropriate relief to the petitioner by setting aside the intimation under Section 143(1) of the Act of 1961 and holding that, such income of the petitioner is not taxable in respect of the relevant assessment year. The Commissioner, however, did not do so. It has remanded the matter to the assessing officer to do the needful. In view of the discussions above, therefore, the intimation under Section 143(1) of the Act of 1961 dated December 7, 2012 as well as the order under Section 264 dated September 25, 2013 are set aside. - W.P. No. 369 of 2014 - - - Dated:- 15-12-2016 - DEBANGSU BASAK, J. For the Pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessed in view of the guidelines laid down by different authorities, learned Advocate for the petitioner has relied upon 2005 (276) ITR 216 (Smt. Phool Lata Somani v. Commissioner of Income Tax Ors.), 2008 (297) ITR 17 (Commissioner of Income Tax v. Williamson Financial Services Ors.), 1986 (160) ITR 920 (Commissioner of Income Tax, Delhi v. Mahalaxmi Sugar Mills Co. Ltd.). Learned Advocate for the petitioner has referred to an administrative instruction for guidance of income tax officers on matters pertaining to assessment and has submitted that, the income tax officer ought to have guided the assessee with regard to the income tax payable. Learned Advocate for the department has submitted that, the order under Section 143(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eived ₹ 27,92,417/- from his employer during the assessment year in question instead of the sum of ₹ 5,63,850/-. The proceedings under Section 264 of the Income Tax Act, 1961 was disposed of by the impugned order dated September 25, 2013. There are two parts to the impugned order. The first part finds the petitioner s income to be assessable under the Income Tax Act, 1961. It, however, does compute the tax liability. The Second portion relates to the exemption receivable by the petitioner and notes that, such exemptions have not been claimed by the petitioner. It ultimately allows the assessing officer to take necessary action. The contention on behalf of the petitioner that, in the present facts, the petitioner is exempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such section by reason only of the fact that it is taken into account in a balance sheet prepared in India. Explanation 2 clarifies that income will not be treated to be received in India solely on the basis that such income was received or deemed to be received in India. Therefore, it has to be found out where the income to the person concerned had accrued. For the purpose of finding out the place of accrual of the income, the place where the services have been rendered becomes material. In fact, the place where the income gave rise is required to be considered to arrive at a finding whether the income was in India or outside India. In Prahlad Vijendra Rao (Supra) an income derived by a person working outside India for 225 days has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner. It has held that, the powers conferred on the Commissioner under Section 264 are very wide. The Commissioner has the discretion to grant or refuse reliefs. There is nothing in Section 264 which places any restriction on the Commissioner s revisional power to grant relief to the assessee in a case where the assessee detects mistake on account of which he was over assessed after the assessment was completed. Circular Bearing No. 14 (XL-35) dated April 11, 1995 prescribes as follows:- (3) 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 and securing reliefs and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndal (supra) is a case where the assessee has assailed the order of assessment under Section 264 without preferring an appeal. In the facts of the case, it has held that, the writ petition was not maintainable inasmuch as the writ petitioner was seeking to challenge the order of assessment through such a process. The re-opening of the order of assessment through such mechanism was not permitted by the Hon ble Division Bench. The impugned order is one under Section 264 of the Act of 1961. The power under Section 264 is wide enough to grant appropriate relief to an assessee. In the impugned order, the Commissioner notes that, the income received by the petitioner is in respect of services rendered for 286 days outside India. The Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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