TMI Blog2022 (2) TMI 535X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, respondent no.1 committed an error in constricting the scope of revisional jurisdiction, in the backdrop of the said undisputed factual position. In fact, the very foundation of the application under Section 264 of the Act, 1961 was that the assessee had inadvertently failed to claim the benefit of Article 10 of the India Kuwait DTAA, under which the dividend distribution was taxed at a lower rate. We are of the view that the approach of respondent no.1 in refusing to exercise the jurisdiction under Section 264 of the Act, 1961 on the premise that it can be lawfully exercised only where such a refund was claimed and considered by the Assessing Officer is neither borne out by the text of Section 264 of the Act, 1961 nor the construc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... March, 2021, passed by the Principal Commissioner, Income Tax, ( PCIT ), Mumbai, respondent no.1, in Revision Application No. PCIT, Mumbai-5/Revision-264/100000104019/2021, under Section 264 of the Income Tax Act, 1961 ( the Act, 1961 ), whereby respondent no.1 was persuaded to reject the revision application on the ground that it was not maintainable under Section 264 of the Act, 1961. 3. The facts necessary for the determination of this petition are as under: (a) The petitioner is a private limited company. It is successor of United Arab Shipping Agency India Company Pvt. Limited ( UASAC ), which amalgamated with the petitioner with effect from 1st April, 2019, pursuant an order by National Company Law Tribunal. The UASAC, the pred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion on the ground that respondent no.1 has completely misconstrued the scope of jurisdiction under Section 264 of the Act, 1961. This incorrect approach of respondent no.1 has resulted in unjustified refusal to exercise the jurisdiction vested in him by Section 264 of the Act, 1961. Thus, the impugned order be set aside and the matter be remitted back to respondent no.1 for determination on merits. 5. An affidavit-in-reply is filed on behalf of respondent no.1, wherein an endeavour has been made to support the impugned order. It is, inter alia, contended that the Assessment Order passed by the Assessing Officer under Section 143(3) of the Act, 1961, cannot be said to be against the interest of the assessee and, therefore, respondent no. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, which was sought to be revised cannot be said to be prejudicial to assessee and, therefore, respondent no.1 was well within his rights in refusing to exercise the revisional jurisdiction. 9. In order to properly appreciate the aforesaid submissions, it may be apposite to extract the relevant part of the reasons ascribed by respondent no.1 in the impugned order. Paragraph 6 reads as under: 6. I have perused the relevant material available on record. I find that the assessee had not made the said claim of refund of excess DDT at the time of filing of return of income i.e. on 30.11.2016. If the assessee company had realized that the said claim of refund of excess DDT remained to be claimed, this claim should have been made while fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3(3) on 18th December, 2018. Second, respondent no.1 was of the view that the jurisdiction under Section 264 was confined to correct the order which is found to be apparently erroneous. 11. Respondent no.1 was justified in recording that the assessee had not claimed refund of excess tax paid by it in the original and revised return. However, respondent no.1 committed an error in constricting the scope of revisional jurisdiction, in the backdrop of the said undisputed factual position. In fact, the very foundation of the application under Section 264 of the Act, 1961 was that the assessee had inadvertently failed to claim the benefit of Article 10 of the India Kuwait DTAA, under which the dividend distribution was taxed at a lower rate. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Courts, this concurred with the view that Section 264 does not limit the power to correct errors committed by the sub-ordinate authorities and could even be exercised where errors are committed by the assessee and there is nothing in Section 264 which places any restriction on the Commissioner s revisional power to give relief to the assessee in a case where assessee detects mistakes after the assessment is completed. 14. The aforesaid pronouncement is on all four with the facts of the case at hand. 15. We are, therefore, inclined to interfere with the impugned order. Since respondent no.1 has not considered the revision application on merits, it would be in the fitness of things to remit the application back to respondent no.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
