TMI Blog1979 (7) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the nature of certiorari, or any other appropriate writ, direction and/or order under art. 226 of the Constitution of India quashing and setting aside the said order to the extent it is prejudicial to the petitioner, and directing the Commissioner to revise the order of the ITO by reducing the assessed income by Rs. 20,000 or, in the alternative, asking him to quash the order of the ITO and remanding the matter to the ITO to pass a fresh order after considering all the relevant facts in the case. The petitioner is a firm and it is assessed to income-tax for the last many years. For the assessment year 1966-67, the petitioner submitted a return of income showing a total income of Rs. 58,353. The petitioner had shown total sales of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aroda, who is the respondent in this petition. It was pointed out by the petitioner to the Commissioner that there was a mistake in totalling the purchases and as a result of this mistake it had under-totalled the purchase to the tune of Rs. 20,000. It was further pointed out that on account of this under-totalling the gross profit went up to 10% as against the gross profit of 7% in the preceding year. The petitioner further pointed out that if this mistake of under-totalling of purchases to the tune of Rs. 20,000 was taken into account, the gross profit would work out to 9.2% which was higher than the gross profit of 7% disclosed in the preceding year. The petitioner, therefore, requested the Commissioner to give him relief to the extent o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tances of the case there was no justification to make the addition of Rs. 1,000 to the trading results disclosed by the petitioner. This would clearly mean that he was accepting the trading results disclosed by the petitioner. So far as under-totalling of the purchases detected by the petitioner after passing of the assessment order by the ITO is concerned, the Commissioner has not found that there is no under-totalling. It appears from the order of the Commissioner that he was accepting the petitioner's contention that there was an under-totalling of purchases to the extent of Rs. 20,000 but he felt helpless and refused to give any relief to the petitioner as in his view he did not have power to revise the assessment order under s. 264 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ject to the provisions of this Act, may pass such order thereon, not being an order prejudicial to the assessee, as he thinks fit. " It is clear that under s. 264, the Commissioner is empowered to exercise revisional powers in favour of the assessee. In exercise of this power, the Commissioner may, either of his own motion or on an application by the assessee, call for the record of any proceeding under the Act and pass such order thereon not being an order prejudicial to the assessee, as he thinks fit. Sub-sections (2) and (3) of s. 264 provide for limitation of one year for the exercise of this revisional power, whether suo motu, or at the instance of the assessee. Power is also conferred on the Commissioner to condone delay in case he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed the grounds regarding under-totalling of purchases before the ITO, it was within the power of the Commissioner to admit such a ground in revision. The Commissioner was also not right in holding that the over-assessment did not arise from the order of assessment. Once the petitioner was able to satisfy that there was a mistake in totalling purchases and that there was under-totalling of purchases to the tune of Rs. 20,000, it is obvious that there was over-assessment. In other words, the assessment of the total income of the assessee is not correctly made in the assessment order and it has resulted in over-assessment. The Commissioner would not be acting de hors the I.T. Act, if he gives relief to the assessee in a case where it is prove ..... X X X X Extracts X X X X X X X X Extracts X X X X
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