TMI Blog2017 (6) TMI 982X X X X Extracts X X X X X X X X Extracts X X X X ..... order passed by the assessing officer is maintainable or not- Held that:- Again, with respect, Section 264 of the Act of 1961 permits the Commissioner to revise all orders which are not under Section 263 of the Act of 1961. The order impugned before the Commissioner under Section 264 of the Act of 1961 was passed under Section 154 of the Act of 1961. The revisional application directed against the order passed under Section 154 of the Act of 1961 is revisable under Section 264 of 1961. The Commissioner, therefore, failed to exercise jurisdiction vested upon in law by rejecting the application made under Section 264 of the act of 1961 by holding that the application before him was not maintainable. Filing of rectification petition five ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first assessment year. In the subsequent years, it had proceeded to claim depreciation on the basis of the cost of plant and machinery inclusive of the CENVAT Credit. He submits that, his client had committed this mistake over a period of five assessment years. Subsequently, the Excise Authorities took exception to the treatment of the accounts in the manner so done by the petitioner. The petitioner was then put on notice that there was a mistake in the treatment of the accounts. Finding that, one of the assessment years was within the period of limitation under Section 139 (5), the petitioner filed a revised return before the assessing authority. The assessing authority accepted the reworking in respect of such revised return. For the bal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o income as also depreciation. Secondly, he submits that, the Commissioner had misconstrued the proceedings under Section 264 of the Act of 1961, when he returns a finding that, a petition under Section 264 would not allow against the order of assessment. He refers to Section 264 of the Act of 1961 and submits that, no order other than the order passed under Section 263 is revisable before him under Section 264 under the Act of 1961. So far as the point of limitation noted in the impugned orders is concerned, learned senior advocate for the petitioner refers to the respective date of the making of the application before the assessing officer, the order passed by the assessing officer impugned before the Commissioner and submits that, the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars 2004- 05 to 2007-08. In such proceeding, the assessee filed an application dated March 24, 2010. A copy of such application is annexed to the writ petition. It appears from such application that, the petitioner made a composite application for rectification. It appears that, the assessing officer required the petitioner to file a separate application for dealing with the portion of the depreciation only. The petitioner did so. The assessing officer proceeded to deal with the portion for depreciation and accepted the contentions of the petitioner in respect thereto. The petitioner thereafter approached the assessing officer for the purpose of dealing with the portion of the income. The assessing officer refused to do so. Being aggrieved, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the act of 1961 by holding that the application before him was not maintainable. The third ground of rejection is that, filing of rectification petition five years after passing an order of assessment is an exercise to bypass limitation made under Section 264 of filing of a petition. Such ground is not available in the facts of the present case. The petitioner had applied before the assessing officer under Section 154 of the Act of 1961 within four years of the order sought to be corrected. The petitioner did not delay in filing the petition under Section 264 beyond the prescribed of one year from the date of passing of the order under Section 154 by the assessing officer. Consequently limitation is not available to defeat the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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