TMI Blog2021 (8) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... tled to benefit, technical failure on the part of an assessee to claim the benefit in time, should not come in the grant of substantial benefit/benefits that was/were otherwise available under the Income Tax Act, 1961 but for such technical failure. The petitioner would be entitled to the benefit of Section 80JJAA of the Income Tax Act, 1961. The 1st respondent ought to have allowed the application filed by the petitioner under Section 264 of the Income Tax Act, 1961. The petitioner is entitled to partial relief at this stage. Accordingly, the impugned order is set aside by condoning the delay in filing the return. The 2nd respondent is therefore directed to pass appropriate orders on merits in accordance with law, ignoring the delay on the part of the petitioner in filing the returns under Section 139(5) of the Income Tax Act and/or failure to furnish the report of an accountant.2nd respondent shall pass a speaking order within a period of three months from the date of receipt of a copy of this order - W.P.No.3967 of 2009 - - - Dated:- 6-2-2021 - Hon'ble Mr.Justice C.Saravanan For the Petitioner : Mr.A.S.Sri Raman for Mr.S.Sridhar For the Respondents : Mr.A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment Year 2004-05. Separate appeal was filed in ITA No 1338/MDS/2009 for the Assessment Year 2006- 07. 11. The Tribunal by its common order dated 13.11.2009 set aside the order of the Commissioner of Income Tax (Appeal) dismissing the petitioner s appeal and remitted the case back to the Commissioner of Income Tax (Appeal) to pass a speaking order. 12. The Commissioner of Income Tax (Appeal) in the remand proceeding passed a fresh order on 28.10.2011 and partly allowed the aforesaid appeal. However, the said appeal did not deal with issues relating to the claim of the petitioner for deduction under Section 80JJAA of the Income Tax Act, 1961 as it was not subject matter of Appeal. 13. Against the order of the Commissioner of Income Tax (Appeal), the 2nd respondent preferred an appeal in ITA.No.19/Mds/2012 for the Assessment Year 2004-05 and in ITA No.1835/Mds/2012 for the Assessment Year 2003-04 before the Income Tax Appellate Tribunal 'B' Bench. By an order dated 12.05.2017, the Appellate Tribunal dismissed the respective appeals of the 2nd respondent. 14. As far as the Assessment Year 2005-06 is concerned, the petitioner filed a Revision Petition under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Selva Muthu Kumar Vs. Commissioner of Income Tax, [2017 ] 394 ITR 247 a Division Bench of this Court held as follows:- 13. The relief provided in terms of Section 139(5) is specific to the correction of a wrong statement or an omission in the original return by way of a revised return. The power under Section 264 of the Act extends to passing any order as the Principal Commissioner or Commissioner may think fit after making an inquiry and subject to the provisions of the Act, either suo-moto or on an application by the assessee. Though the remedies over lap, power under Section 264 is significantly wider and the wisdom of choosing one over the other would really depend on the facts and legal position of each case. The facts in the present case are to the effect that the petition under Section 264 was filed on 12.03.2009 once it became clear that the 144A directions issued in the case of SASTRA were in fact being accepted and applied by the Revenue in the re-assessments of the appellant dated 21.10.2008, 24.12.2008 and 14.12.2009 (AY 2003-04, 2004-05 and 2005- 06), by which time, limitation under Section 139(5) for filing a revised return, being 31.3.2008, had lapsed. Suffice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income Tax Act, 1961. Thus, the original assessment which was completed on 29.12.2006 as modified by an order dated 17.1.2007 and was put to jeopardy by the respondent. Once notice under Section 148 of the Income Tax Act, 1961 is invoked, the 2nd respondent has wide power to reassess not only the income escaping keeping assessment but also grant reliefs that are due to an assessee. Such exercise would culminate in a fresh re-assessment order which no doubt has been eventually set aside by the Tribunal. 27. However, in the course of such a re-assessment proceedings, the assessment already made was put to jeopardy Under Explanation 3 to Section 147 of the Income Tax Act, 1961, an assessing officer can assess or re-assess the income in respect of any issue, which escaped assessment including such issue comes to his notice subsequently in the course of the proceeding, notwithstanding that the reason for such issue have not been included in the reasons recorded under Sub-section (2) of Section 148. Therefore, while assessing or re-assessing, the Assessing Officer has to also factor such benefits that were available to the petitioner. 28. The Assessing Officer is also duty-bound t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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