TMI Blog2022 (9) TMI 1381X X X X Extracts X X X X X X X X Extracts X X X X ..... where an appeal is filed against an order to the Deputy Commissioner (Appeals) or to the Commissioner (Appeals) or to the Appellate Tribunal or where the order is pending on an appeal before the Deputy Commissioner (Appeals) or where the order has been made subject, of an appeal to the Commissioner (Appeals) or to the Appellate Tribunal. Having regard to the above, the question of Commissioner (Appeals) considering the request of the petitioner would not arise. Petitioner would submit that a direction may be given to the first respondent to consider the revision of the petitioner under Section 263 on merits, by treating the appeal filed by the petitioner as withdrawn. It is to be noted here that an order under Section 264 is required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be just and proper for the petitioner to get the Appeal adjudicated on merits before the Appellate Authority. - Writ Petition No.24522 of 2022 - - - Dated:- 14-9-2022 - HON BLE SRI JUSTICE C.PRAVEEN KUMAR AND HON BLE SRI JUSTICE A.V. RAVINDRA BABU Petitioner and Advocate : P. Pavan Kumar Rao Respondent and Advocate : M Kiranmayee (SC For Income Tax ) ORDER:- (PER THE HON BLE SRI JUSTICE C. PRAVEEN KUMAR) The present writ petition came to be filed, seeking the following reliefs:- (a) to declare the order of first respondent, CIT (Exemption), Hyderabad dated 30.03.2022 as being unjust, invalid and against the settled principles of law and principles of natural justice, consequently set aside the order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 019, which was transferred to the National Faceless Appeal Centre [NFAC]. (a) While things stood thus, the petitioner made an application under Section 264 of IT Act, for revision of the order, dated 31.12.2019 before the first respondent. At the same time, the petitioner made an application before the second respondent seeking withdrawal of the appeal filed vide letter dated 04.02.2021. It is said that the petitioner herein made number of requests on various dates seeking permission of withdrawal of the appeal. Without considering the request made, the Commissioner of Income Tax vide Order dated 30.03.2022 rejected the revision filed on the ground that the appeal filed by the assessee against the order of Assessing Officer is pending b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the averments made in the affidavit filed, challenging the proceedings issued for the assessment year 2017-18, the petitioner preferred an appeal before the second respondent. Pending appeal, an application for revision, intimation under Section 143(3) of the I.T. Act came to be made under Section 264 of the I.T. Act. Since an application under Section 264 of the I.T. Act cannot be entertained pending appeal, an order came to be passed rejecting the request for revision of intimation. 5. In order to appreciate the correctness of the order passed, it would be just and proper to refer to Section 264 (4) of the I.T. Act, which is as under:- The [Principal [Chief Commissioner or Chief Commissioner or Principal] Commissioner or] Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal filed by the petitioner as withdrawn. It is to be noted here that an order under Section 264 of the I.T. Act is required to be passed within a period of one year from the end of Financial Year, in which, the application is made by the petitioner for revision. In the instant case, last date of passing of order was 31.03.2022. That being the position, the question of giving a direction to the Commissioner for passing of an order under Section 264 of the I.T. Act beyond the said period would not arise. Hence, we are of the view that such a request cannot be granted. 8. Further, having regard to the provision of law referred to above, an order cannot be passed by treating something which is not in existence. Hence, the first relief so ..... X X X X Extracts X X X X X X X X Extracts X X X X
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