TMI Blog2017 (2) TMI 987X X X X Extracts X X X X X X X X Extracts X X X X ..... 139(5) for filing a revised return, being 31.3.2008, had lapsed. Suffice it to say that, on the facts of this case, the remedy under section 264 is appropriate and ought to have been exercised in favour of the appellant by the Commissioner of Income tax. - Writ Appeal No. 2707 of 2010 - - - Dated:- 15-2-2017 - Huluvadi G. Ramesh And Anita Sumanth, JJ. For the Appellant : Mr. R. Vijayaraghavan for M/s.Subbaraya Aiyar For the Respondent : Mr.M. Swaminathan K. Sureshkumar JUDGMENT ( Order of the Court was pronounced by Dr. Anita Sumanth, J. ) This Writ Appeal ennumerates the scope of powers under section 264 of the Income Tax Act (hereinafter referred to as Act') dealing with Revision of orders. 2. The petitioner had entered into an agreement with M/s.Shanmuga Arts and Science Technology and Research Academy (SASTRA) for the purchase of hostel buildings. The hostels were being managed by the appellant pending finalization of sale and depreciation claimed thereupon in respect of Assessment Years 2003-04, 2004-05 and 2005-06. The transaction could not be completed and upon cancellation of the agreement of sale the hostels reverted to SASTRA and the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment to avail of the benefit. A petition for revision under section 264 of the Act was filed by the appellant on 12.3.2009 before the Commissioner of Income Tax seeking the benefit of deduction of lease rentals in respect of assessment year 2006-2007. The Commissioner rejected the request for revision on two grounds, firstly, that the order under section 144A was passed in the case of SASTRA and as such would not be relevant in the case of any other assessee and secondly, on the ground that power to revise under section 264 is specific to consideration of any issue discussed or decided in an order of assessment which is not the case of the appellant. The Commissioner was of the view that the grievance raised does not emanate from either the return filed by the assessee or the order of assessment and thus jurisdiction under section 264 of the Act would not come into play. 4. A writ petition was filed by the assessee challenging the aforesaid order of the Commissioner of Income Tax dated 22.2.2010. The learned Single Judge vide order dated 23.8.2010 dismissed the writ petition applying the judgment of the Supreme Court in the case of Goetze (India) Limited Vs. Commissioner of Inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of section 263 of the Income-tax Act, the Commissioner of Income-tax is empowered to call for and examine the record of any proceeding and if he considers that the order passed by the Assessing Officer is erroneous insofar as it is prejudicial to the interest of revenue, he may pass an order enhancing or modifying the assessment or cancelling the same with a direction to make it afresh. The provisions as presently worded have given rise to two areas of controversy. The first is relating to the interpretation of the word record and the second is regarding the issue relating to merger of the order of the Assessing Officer with the order of the appellate authority. Courts have held in some cases that the word record occurring in section 263 could not mean the record as it stood at the time of examination by the CIT but the record as it stood at the time when the order was passed by the Assessing Officer. Limiting the power of the CIT only to the situation that was existing at the time of making the assessment is to make the provision too restrictive, as many times information comes on record from various sources which indicate that the order of the Assessing Officer is erron ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial obtained subsequently. The power under section 264 of the Act is, in fact as wide a power, and one that is intended to prevent miscarriage of justice. Courts have consistently taken a view that the conferment of powers under section 264 of the Act is to enable the Commissioner to provide relief to an assessee, where the law permits the same. Reference may be made to the decisions of the Gujarat High Court in C.Parikh and Co. Vs. Commissioner of Income Tax (122 ITR 610) ; Ramdev Exports Vs. Commissioner of Income Tax (251 ITR 873); Kerala High Court in Parekh Brothers Vs. Commissioner of Income Tax and Calcutta High Court in Smt.Phool Lata Somani Vs.Commissioner of Income Tax (276 ITR 216). In this view of the matter, we see no reason to take a different view on the interpretation of the word 'record' occurring in section 264 of the Act from that expressed by the Central Board of Direct Taxes in the Circular extracted above. The order under section 144A dated 31.12.2007 is thus part of the record and ought to have been take into consideration in deciding the petition under section 264 of the Act. 10. In fact the objection raised by the Department is hyper technical a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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