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TMI Blog2025 (2) TMI 656X X X X Extracts X X X X X X X X Extracts X X X X ..... tion on the following two grounds: A.- because the Petitioner has an alternate remedy of instituting an Appeal against the impugned intimation dated 8 July 2015. B- because intimation dated 8 July 2015 under Section 143 (1) of the IT Act, 1961 is not an 'order' revisable under Section 264 of the IT Act. 6. Regarding the first ground, we refer to the provisions of Section 264 of the IT Act, 1961, in which no such limitation is to be found or based on which the commissioner could have declined to exercise its revisional jurisdiction. Coordinate Bench, in the case of Aafreen Fatima Fazal Abbas Sayed Vs. Assistant Commissioner of Income Tax, Circle 23(1), Mumbai, (2021)127 Taxmann.Com 819 (Bombay), in similar circumstances where the commissioner had declined to exercise revisional jurisdiction because the order was appealable and the assessee had chosen not to institute an Appeal, held that revision authority could not have refused to exercise its revision jurisdiction on such a ground. 7. The discussion relevant to the above issue in paragraph 19, 20 and 21 is transcribed below for the convenience of reference:- "....19. What is relevant for our purposes is section 264 (4) ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner to waive such file the appeal would not have expired. 20. Also the argument of the Revenue to say that the Petitioner can still file the appeal by filing an application for condonation of delay, is in our view, not proper and would be a fallacious proposition as after the period of 30 days, there is no right of appeal but an appeal would rest on the discretion of the Appellate Authority to condone delay upon sufficient cause being shown. We are also afraid that we are unable to agree with the reliance of the learned counsel for the Revenue on the case of Dwarka Nath (supra), inasmuch as that was a case where no appeal lay against the order of the Income-tax Officer to the Appellate Commissioner and Therefore the Commissioner certainly had power to revise the said order. The said decision is clearly distinguishable on facts. In this case though an appeal lay before the Commissioner (Appeals), Petitioner has chosen not to file the same and the time to file the same has already expired. Therefore in our view the decision in the case of Dwarka Nath (supra)has no application to the facts of this case. 21. Before parting, we would also like to observe that in matters like the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expiry of one year from the end of the financial year in which the return is made. The scheme of this provision is that the return as filed by the assessee should be accepted at its face value being self-assessment However, the said sub-section is without prejudice to the provisions of sub-section (2). Sub-section (2) of section 143 provides that on furnishing of the return, if the Assessing Officer has reason to believe that any claim of loss, exemption, deduction, allowance or relief made in the return is inadmissible, he can serve notice on the assessee specifying such claim of loss, exemption, allowance or relief, and require the assessee on the specified date to produce or cause to be produced any evidence or particulars specified therein or on which the assessee may rely in support of such claim. However, this power by virtue of the proviso to sub-section (2) is required to be exercised within 12 months from the end of the month in which the return is furnished. If the Assessing Officer invokes that power, then on further inquiry as referred to in sub-section (3), he would make an order in writing allowing or rejecting the claim or claims specified in the notice given to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dingly. On a plain reading of section 156 of the Act, notice of demand is served upon the assessee when any tax, interest, penalty, fine or other sum is payable in consequence of any order passed under the Act. To put it differently, issuance of notice of demand [read intimation under section 143 (1) of the Act), presupposes that it is in consequence of an order having been passed under the Act. In that sense 'intimation' under section 143 (1) would partake of the colour of an order passed under the Act. Understood thus, interference under section 263 of the Act by the Commissioner even against an intimation referable to section 143 (1) is open. We are persuaded to take this view because if the Legislature had intended to exclude the jurisdiction of the Commissioner in respect of proceeding under section 143 (1) of the Act, which is also an assessment and, therefore, in the nature of an order, it would have expressly made provision in that behalf, just as it has amended section 154 of the Act by the Finance Act, 1999, in respect of the provision for 'rectification of mistake' as a consequential amendment made to envelop the amended section 143 (1) of the Act. It wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, found that invocation of power under section 263 was inappropriate. Even in the case of Nazir Singh (supra) a more or less similar position was noticed by the Madhya Pradesh High Court, inasmuch as, the liability of the payment of the assessee was only around Rs. 1,300. It is in that backdrop, the Madhya Pradesh High Court took the view that section 263 of the Act was not available and ought not to have been invoked, in such cases. The Madhya Pradesh High Court has referred to the Board's Circular Nos. 4 dated July 8, 1986 and 176 dated August 26, 1987, which provide that no remedial action was necessary for summary assessment as the revenue loss, if any, was consciously suffered by the Government in utilising resources in scrutiny and investigation of larger cases. In that sense, this decision is also of no avail to the respondent. In our view, in the present case, the Tribunal has not based its opinion on the said circulars as such. On the other hand, having regard to the case as made out by the Commissioner for exercising power under section 263, that the respondent-assessee was liable to pay income-tax to the extent of Rs. 49,23,078 being 30 per cent deemed income o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e revision and such distinction is a real one. Undoubtedly, there is a distinction between appellate and revisional jurisdiction. However, Hari Shankar (supra) is not an authority for the proposition that the revision will not lie under Section 264 of the IT Act, 1961 against an order which is appealable as long as the assessee prefers no such Appeal. In any event, Hari Shankar (supra) was not even dealing with the provision of Section 264 of the IT Act. 16. Mr. Sharma also argued that in this case, the Assessing Officer accepted the return submitted by the Assessee. Therefore, there could be no error in the intimation under Section 141 (1) of the IT Act. 17. No such universal inference can be drawn in tax matters. In any event, the revisional authorities exercising the revisional jurisdiction must look into this matter since this is a case where the revisional authority has virtually declined to exercise the jurisdiction vested in it. We have found that the two reasons the revisional authority declined to exercise its jurisdiction were untenable. Therefore, the impugned order dated 12 February 2021 is liable to be set aside and is hereby set aside. 18. The Petitioner's revision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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