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Kush Proteins PVT. LTD. Versus Pr. Commissioner of Income-Tax

2018 (2) TMI 765 - GUJARAT HIGH COURT

Revision petition u/s 264 in favor of assessee - amount taxed twice - Held that:- The revisional powers of the Commissioner under section 264 of the Act are very wide and empowers the Commissioner to take any order of his subordinate authority into revision and further make necessary inquiry to pass such order as he thinks fit. These powers are subject to two main restrictions viz. that the order would be subject to the provisions of the Act and in any case, cannot be an order prejudicial to the .....

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is vested with all the plenary powers which the subordinate authority may have and there is no reason to justify curtailment of the power of the appellate Commissioner in entertaining an additional ground raised by the assessee in seeking modification of the order of assessment passed by the Assessing Officer. - The question of double taxation was very much appearing before the Assessing Officer during the assessment for the assessment year 2013-14. It was this issue which the assessee had c .....

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lication.- Decided in favour of assessee - Special Civil Application No. 12237 of 2017 - Dated:- 6-2-2018 - MR. AKIL KURESHI AND B. N. KARIA, JJ. For The Petitioner : Mr.Tushar Hemani, Advocate with Ms Vaibhavi K Parikh, Advocate For The Respondent : Mr KM Parikh, Advocate And Mr.Varun K.Patel, Advocate ORAL ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. Petitioner has challenged an order dated 30.03.2017 passed by the Commissioner on a petition for revision filed by the assessee under sect .....

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#8377; 2.62 crores (rounded off) during the assessment year 2013-14. In the return of income that the company filed for the said assessment year 2013-14, the company declared a total income of ₹ 3.03 crores (rounded off) which included the said income of ₹ 2.62 crores disclosed during the survey. 4. While the assessment of the petitioner's return for the assessment year 2013-14 was still pending, the Assessing Officer took the petitioner's return for the assessment year 2012- .....

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representative of the assessee agreed to offer such income of ₹ 44.80 lakhs to tax in the assessment year 2012-13. He simultaneously requested that such amount may be reduced from the return of income for the assessment year 2013-14. He pointed out that nondisclosure of the income of ₹ 44.80 lakhs in the assessment year 2012-13 was a mere oversight. 5. Acting on such statement of the representative of the assessee company, the Assessing Officer framed the assessment for the assessmen .....

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iling a revision petition under section 264 of the Act and took up the issue of the said sum of ₹ 44.80 lakhs to be taxed twice. To this extent, he challenged the order of assessment for the assessment year 2013-14. 8. During the hearing of the revision petition, the Commissioner also called for the remarks of the Assessing Officer. Such remarks were offered under a communication dated 15.03.2017, in which, the Assessing Officer conveyed as under: 2. In this connection, vide letter of even .....

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regular business income. On perusal of the statement in respect of unaccounted purchases, on the basis of which the assessee had declared income of ₹ 2,62,25,525/also contained the amount of ₹ 44,80,302/which pertained to A.Y 201213. 3. During the course of assessment proceedings for the A.Y.201213, the A.R. Of the assessee vide letter dated 25/03/2015 submitted that the said income had already been offered for taxation for A.Y.201213 and the same should be reduced from the income of .....

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as per Para No.05.1 of Assessing Order dated 27/03/2015 for the A.Y 201213 and Para No.2 & 3 of Assessing Order dated 08/01/2016 for the A.Y 201314. Thus, even the Assessing Officer agreed to the petitioner's suggestion that the said sum of ₹ 44.80 lakhs form part of the larger disclosure of ₹ 2.62 lakhs made by the assessee for the assessment year 2013-14 and which sum of ₹ 44.80 lakhs was shifted to the assessment year 2012-13 for taxing purpose. On the basis of such .....

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pulated time. No explanation is offered by the assessee for not filing such revised return. He was of the opinion that no provision contained in the Act permits the Assessing Officer to determine the income lower than the returned income or to accept a claim which has not been made in the original return of income for which revised return has not been filed. 9. The facts are not seriously in dispute. The Revenue does not dispute at all that the assessee's income to the extent of ₹ 43.8 .....

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tement itself, the assessee had requested the Assessing Officer to delete such income from the assessment year 2013-14. 10. Looked from any angle, the stand of the Commissioner cannot sustain. Firstly, this would go to the very basic principle of the Revenue not allowed to take income which does not exist. The tax can be collected only on real income. It would also go against the basic principle of not taxing the same income twice. Not making deductions in the assessment year 2013-14 on the grou .....

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taxed for the assessment year 2012-13 but must be released from consideration of the assessee's income for the assessment year 2013-14. The Assessing Officer acted only one part of the offer. 11. Even the Commissioner could have in exercise of his revisional powers, corrected the injustice. Section 264 of the Act empowers the Commissioner either on his own motion or under an application by the assessee to call for any record or proceedings under the Act in which an order is passed by a subor .....

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