TMI Blog2009 (5) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... with law - 4749 (MB) of 2009 - - - Dated:- 27-5-2009 - Hon'ble Pradeep Kant, J. and Hon'ble S.N.H. Zaidi, J. Petitioner's Counsels - Pradeep Agrawal Respondent's Counsel - <?xml:namespace prefix = st2 /> D. D. Chopra JUDGMENT Notice on behalf of the respondents has been accepted by Sri D.D. Chopra. With the consent of the parties' counsel, the writ petitions are being disposed of finally at the admission stage. These are two writ petitions, which challenge the order dated 17.3.09 passed by the Commissioner of Income Tax separately, in respect of assessment year 1999-2000 and 2001-02. A notice under Section 148 was issued to the petitioner, against which returns were filed and assessment has been m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the provisions of the Act, may pass such order thereon, not being an order prejudicial to the assessee, as he thinks fit. Sub-clause (4) of Section 264 restricts the power of the Commissioner to pass any order, if it falls within any of the categories, as provided therein. Sub-clause (4) of Section 264 reads as under: "(4) The Commissioner shall not revise any order under this section in the following cases - (a) where an appeal against the order lies to the Deputy Commissioner (Appeals) or to the Commissioner (Appeals) or to the Appellate Tribunal but has not been made and the time within which such appeal may be made has not expired, or, in the case of an appeal to the Commissioner (Appeals) or to the Appellate Tribunal, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterpret the order passed by the assessing authority nor the plea of the parties as to whether the order passed by the Tribunal is binding or not, and whether the matter is covered by any binding precedent. We are of the view that the Commissioner could not have refused to entertain the revision on the ground that it is not a substitute of appeal, though there may be many more reasons, on which exercise of the discretionary jurisdiction can be refused but such reasons have to be germane to the issue and valid. We, therefore, set aside the orders dated 17.3.09 passed by the Commissioner of Income Tax and direct that the Commissioner shall reconsider the revisions under Section 264 and pass fresh orders, as per his own discretion, in ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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