TMI Blog2021 (9) TMI 829X X X X Extracts X X X X X X X X Extracts X X X X ..... which the Commissioner of Income Tax has upheld the order of the assessment u/s 147/144 of the Act treating the petitioner as Resident and for the first time petitioner has produced the aforesaid certificate issued by his employer in this writ proceeding and wants this Writ Court to appreciate and consider the aforesaid piece of evidence in exercise of its constitutional writ jurisdiction under Article 226 of the Constitution of India while all these facts are totally absent in the aforesaid decisions/judgments upon which petitioner wants to rely and furthermore in addition to these facts, circulars/notifications upon which petitioner wants to rely is in conflict with Section 6 (1) of the Income Tax Act, 1961 and it is settled principle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... global income of the resident as taxable while it is the claim of the petitioner that it is not taxable by taking the ground that during the financial year relevant to assessment year 2004-05 he was on foreign water for a total period of 184 days and his residential status should have been taken as Non-Resident and salary received by him should have been treated as exempted by relying on Circular no. 586 of the CBDT dated 28th November, 1990 which is calculable for the crew members. It appears from the record that in response to the notice under Section 148 of the Income Tax Act no return was filed by the assessee-petitioner and the Assessing Officer had no occasion to issue notice under Section 143 (2) of the Act and he had to complet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -Resident should not be denied and the same be included in the total income. (iv) Furnish details of your global income received/receivable from whatever source which is liable to income tax in India. (v) Produce copies of all bank statements for verification. In response to the aforesaid queries petitioner s representative filed written submission and contended that his reply dated 27th January, 2005 may be treated as reply to notice under Section 142 (1) of the Act and also contended that the said letter should be treated as return to the said notice under Section 148 of the Act and claimed that petitioner has no taxable income apart from what has been declared in his return filed on 26th July, 2004. It is also an admitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scope of which is much narrower than the Appeal and Commissioner of Income Tax under Section 264 of the Act has the power to pass such order which are an order not prejudicial to the assessee if he thinks fit but Explanation-1 under Section 264 of the Act clearly says that an order by the Principal Commissioner or Commissioner of Income Tax declining to interfere with the order proposed to be revised shall not be deemed to be an order prejudicial to the assessee and the same is not Appealable. Furthermore, petitioner failed to establish his case and could not deny the factual and legal position either before the Assessing Officer or before the Commissioner of Income Tax in the proceeding under Section 264 of the Act that he stayed in Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer or before the Commissioner in the proceeding under Section 264 of the Income Tax Act, 1961. Petitioner in support of his contention has relied on the following two judgments and a Circular which are as follows: (i) (1977) 2 Supreme Court Cases 777 (State of Kerala vs- K.T. Shaduli Grocery Dealer Etc.) (ii) (1999) 4 Supreme Court Cases 599 (UCO Bank, Calcutta vs- Commissioner of Income Tax, W.B). (iii) Circular No. 586 dated 28th November, 1990 issued by the Central Board of Direct Taxes (CBDT). The aforesaid judgments of the Hon ble Supreme Court has no application in the peculiar facts involved in the case that is that the petitioner himself has claimed in his return as Resident secondly, he did not f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner wants to rely is in conflict with Section 6 (1) of the Income Tax Act, 1961 and it is settled principle of law that if there is a conflict between a circular or notification and an Act the Act will prevail. In view of the factual and legal discussion made above I am not inclined to interfere with the impugned order of the respondent Commissioner of Income Tax dated 25th January, 2007 passed in exercise of his revisional jurisdiction under Section 264 of the Income Tax Act, 1961, confirming the order of assessment under Section 147/144 of the Income Tax Act, 1961 treating the petitioner as Resident , in exercise of limited scope of judicial review by this Court under constitutional writ jurisdiction under Article 226 of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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