TMI Blog2019 (6) TMI 1099X X X X Extracts X X X X X X X X Extracts X X X X ..... ne of liability. The department represents the soveriegn power of the State in matters relating to taxation. Whether the department had illegally collected the tax from the citizen or whether the assessee mistakenly paid the tax to the department, the consequence is one and the same. If the assessee had mistakenly paid, it is a case of illegal retention by the department. I sustain the stand of the authority that Section 264 of the Income Tax Act was clearly not applicable in this case. But then, Section 119 of the Income Tax Act could have been invoked. The authority ought to have posed only one question to himself i.e., whether the assessee was liable to pay the tax in question or not. If he was not liable to pay the tax in question, the department had no business to retain it even if it was wrongly paid. Of course, the question of paying interest for the retained amount will not arise. It is subject to the outcome of the challenge that is pending before the Madras High Court at the instance of the department. It is open to the respondent to pass such orders as the facts and circumstances warrant. But then, an applicant ought not to have been simply shown the door. . Volen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.The writ petitioner paid FBT for the said assessment year 2007-08 to the extent of ₹ 2,60,97,892/- including the tax for the contributions mentioned above. While so, on 23.06.2008, an intimation under Section 115 WE of the Act was served on the writ petitioner calculating interest due under Sections 115 WJ (3) and 115WK to the extent of ₹ 46,97,621/- which resulted in tax due to the extent of ₹ 49,96,310/-. Against the said intimation under Section 115 WE of the Act, a rectification application dated 04.08.2008 under Section 154 of the Act was filed contending that there has been an erroneous charge of interest. The Assessing Officer was satisfied that there was a mistake apparent on the face of record. The tax payable was reduced to NIL and resulted in refund of ₹ 1,310/-. 4.While so, for the assessment year 2006-07, the writ petitioner had filed FBT return on 29.11.2006 declaring Fringe benefit value of ₹ 2,87,06,054. It was processed and an intimation under Section 115 WE (1) of the IT Act was sent to the writ petitioner on 20.09.2007. A rectification order was passed on 26.08.2008. the writ petitioner took the stand that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the respondent. 8.I carefully considered the rival contentions. Section 264 of the Income Tax Act reads as under : Revision of other orders. 264. (1) In the case of any order other than an order to which section 263 applies passed by an authority subordinate to him, the Principal Commissioner or Commissioner may, either of his own motion or on an application by the assessee for revision, call for the record of any proceeding under this Act in which any such order has been passed and may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act, may pass such order thereon, not being an order prejudicial to the assessee, as he thinks fit. (2)The Principal Commissioner or Commissioner shall not of his own motion revise any order under this section if the order has been made more than one year previously. (3)In the case of an application for revision under this section by the assessee, the application must be made within one year from the date on which the order in question was communicated to him or the date on which he otherwise came to kno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Deputy Commissioner (Appeals) shall be deemed to be an authority subordinate to the Principal Commissioner or Commissioner. 9.Thus, the condition precedent for invoking this provision is that an order should have been made by the authority subordinate to the respondent. Section 264(1) commences with the expression in the case of any order . Section 264(2) also forbids the revising authority from revising any order on its own motion, if it has been made more than one year previously. Section 264 (3) prescribes the limitation of one year and empowers the revising authority to condone the delay in filing an application by the assessee if sufficient cause is made out. But even the said sub-section talks about making of application within one year from the date on which the order in question was communicated or the date on which the assessee came to know of it whichever is earlier. 10.Therefore, unless there is a revisable order, the jurisdiction under this provision cannot be invoked. Therefore, I have to necessarily concur with the submission of the learned Standing Counsel that the application filed by the petitioner under Section 264 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The discretion so vested is required to be exercised in a manner which would protect and promote the just interest of the assessee. The position of the assessee vis-a-vis the Revenue is not strictly adversarial, although more often than not, that is the manner in which the two parties perceive their role. The Revenue is not to be regarded as interested in scoring points against the assessee, but only in the just enforcement of the provisions of the Act. The discretion of the authority, therefore, on the facts of this case, was required to be exercised by bearing the aforementioned considerations in mind. 12.The writ petitioner's counsel wants me to bear in mind the aforesaid observations made by the eminent Judge. He also placed reliance on the decision of the Hon'ble Supreme Court reported in (1965) 57 ITR 349 (SC) (Dwarka Nath vs. Income Tax Officer). The Hon'ble Supreme Court observed that Article 226 of the Constitution of India is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. 13.The writ petitioner had succeeded before the Tribunal in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Board may, from time to time, issue such orders, instructions and directions to other incometax authorities as it may deem fit for the proper administration of this Act, and such authorities and all other persons employed in the execution of this Act shall observe and follow such orders, instructions and directions of the Board : Provided that no such orders, instructions or directions shall be issued- ( a )so as to require any income-tax authority to make a particular assessment or to dispose of a particular case in a particular manner; or ( b )so as to interfere with the discretion of the Commissioner (Appeals) in the exercise of his appellate functions. (2)Without prejudice to the generality of the foregoing power,- ( a )the Board may, if it considers it necessary or expedient so to do, for the purpose of proper and efficient management of the work of assessment and collection of revenue, issue, from time to time (whether by way of relaxation of any of the provisions of sections 115P, 115S, 115WD, 115WE, 115WF, 115WG, 115WH, 115WJ, 115WK, 139, 143, 144, 147, 148, 154, 155, 158BFA, sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision will not vitiate the proceedings. I sustain the stand of the authority that Section 264 of the Income Tax Act was clearly not applicable in this case. But then, Section 119 of the Income Tax Act could have been invoked. The authority ought to have posed only one question to himself i.e., whether the assessee was liable to pay the tax in question or not. If he was not liable to pay the tax in question, the department had no business to retain it even if it was wrongly paid. Of course, the question of paying interest for the retained amount will not arise. It is subject to the outcome of the challenge that is pending before the Madras High Court at the instance of the department. It is open to the respondent to pass such orders as the facts and circumstances warrant. But then, an applicant ought not to have been simply shown the door. 16. Volenti non fit injuria is a maxim invoked in the law of torts. It means that there is no injury to one who consents. The respondent appears to have applied the said principle while considering the petitioner's application. The respondent failed to note that the issue was not one of revisability of an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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