I) [2007] 293 Itr 90 (Punjab & Haryana) In (Commissioner Ofincome-Tax v. Sat Pal Aggarwal

M/s. Indira IndustriesPlot No.6, Sipcot Industrial Complex,Sipcot, Ranipet, Vellore - 632403,Represented by PartnerMr.R.Manikandan .. Petitioner in both WPs.Vs. Principal Commissioner of Income-Tax, Chennai – 600 008BSNL Building, Tower – II, C-WingNo.6, Greams Road,Chennai – 600 006. .. Respondent in both WPs. PRAYER: Writ Petitions filed under Article 226 of theConstitution of India praying to issue a writ of prohibition,prohibiting the respondent from proceeding under section 263 ofthe Income-tax Act, 1961 against the petitioner under C.No. 852(4)/PCIT-8/2017-18 dated 10.08.2017 & C.No. 852(5)/PCIT-8/2017-18 dated 16.08.2017. The writ petitions are filed for issuance of Writ ofProhibition prohibiting the respondent from proceeding undersection 263 of the Income-tax Act, 1961 against the petitionerin C.No. 852(4)/PCIT-8/2017-18, dated 10.08.2017 & C.No. 852(5)/PCIT-8/2017-18 dated 16.08.2017. https://hcservices.ecourts.gov.in/hcservices/ 2. According to the petitioner, assessment for the year2011-2012 was reopened and was reassessed on the agreed basisand the orders were passed under Section 143(3) r/w 147 of theIncome-tax Act, 1961, on 30.12.2016. Now the respondent hasissued notices dated 10.08.2017 and 16.08.2017 for revising thesaid orders on the ground that orders dated 30.12.2016 areerroneous and called upon the petitioner to appear for personalhearing at 4.30 p.m. on 29.08.2017. As per section 263 of theIncome-tax Act, 1961, authority can initiate proceedings forrevision within two years of the order sought to be revised. Inthe present case, the period of limitation expired in the year2013-2014 i.e., two years from the date of original assessment.Further, the respondent cannot raise the issues, which werenever raised in the order and proceedings in question. He reliedon the following two judgments, which had held as follows: (i) [2007] 293 ITR 90 (Punjab & Haryana) in (Commissioner ofIncome-tax v. Sat Pal Aggarwal); “The facts as noticed by the Tribunal in thestatement of case for the assessment year 1981-82are that a notice under section 148 of the Act wasissued to the assessee and there being noresponse, ex parte assessment was framed. The exparte assessment was vacated in appeal.Thereafter, the assessee filed a return declaringloss. During the assessment proceedings, at theinstance of the Assessing Officer, the assesseeagreedtoadditionofRs.18,300afterconsideration of all the entries. Finding theorder passed by the Assessing Officer to beerroneous and prejudicial to the interests of theRevenue, the Commissioner of Income-tax issuednotice under section 263 of the Act and directedthe Assessing Officer to make fresh assessmentkeeping in view the discussion in the order passedunder section 263 of the Act. In appeal, the orderpassed by the Commissioner of Income-tax undersection 263 of the Act was set aside by theTribunal for the reason that the assessment havingbeen framed on agreed basis on the discrepanciespointed out by the Assessing Officer, there was noquestion of holding the order to be erroneous andprejudicial to the interest of the Revenue. During the course of hearing, learned counselfor the Revenue reiterated the submissions madebefore the Tribunal and tried to buttress the samewith the entries in the accounts, on the basis ofwhich the Commissioner of Income-tax sought toexercise powers under section 262 of the Act, but During the course of hearing, learned counselfor the Revenue reiterated the submissions madebefore the Tribunal and tried to buttress the samewith the entries in the accounts, on the basis ofwhich the Commissioner of Income-tax sought toexercise powers under section 262 of the Act, but he could not dispute that it was on account ofthose very discrepancies having been pointed outthat the assessee had agreed for the additionduring the course of reassessment proceedings andthe invocation of jurisdiction by the Commissionerof Income-tax on those very facts was nothing elsebut a change of opinion, which was notpermissible. He could not point out any materialon record to show that the ingredients as arerequired to be satisfied before exercise of powersunder section 263 of the Act were existent in thepresent case.” (ii) [2007] 162 Taxman 465 (SC) in (Commissioner of Income-tax, Chennai v. Alagendran Finance Ltd.); “7. A bare perusal of the order passed by theCommissionerofIncome-taxwouldclearlydemonstrate that only that part of order ofassessment which related to lease equalizationfund was found to be prejudicial to the interestof the revenue. The proceedings for reassessmenthave nothing to do with the said head of income.Doctrine of merger, therefore, would not apply ina case of this nature.” 3. The learned standing counsel for the respondent submittedthat the Commissioner of Income-tax has power under Section 263of the Income-tax Act and there cannot be any time limit forpassing revisional order. The impugned proceedings is only anotice directing the petitioner to appear for personal hearingand give objections if any, against the proposed revisionalorder to be passed against the assessment order dated30.12.2016. In the judgment relied on by the learned counsel forthe petitioner reported in [2007] 293 ITR 90 (Punjab & Haryana)in (Commissioner of Income-tax v. Sat Pal Aggarwal), it is heldthat it is the change of opinion, therefore, Section 263 of theIncome-tax Act cannot be invoked. As per Section 263 of theIncome-tax Act, the Commissioner has power to give his opinionthat the order of the lower authority is erroneous. Therefore,he issued pre-revisional notice to revise the assessment orderdated 30.12.2016 passed under Sections 143(3) read with 147 ofthe Income-tax Act. 4. Heard the learned counsel for the petitioner as well aslearned standing counsel appearing for the respondent. 5. A reading of the impugned notices dated 10.08.2017 and16.08.2017 reveal that the respondent is seeking to revise theorders dated 30.12.2016 and has given reasons for the said orderto be revised. The said impugned notices are issued within two https://hcservices.ecourts.gov.in/hcservices/ years from the date of order dated 30.12.2016. Therefore, thecontention of the learned counsel for the petitioner that noticeissued beyond two years is without merits. The contention of thelearned standing counsel for the respondents that the impugnednotice is only a notice calling upon the petitioner to appearfor personal hearing, has considerable force. Further by theimpugned notice, the petitioner is called upon to appear inperson or through his/her duly authorised representative alongwith objections, if any. In view of the fact that by impugnednotice, a personal hearing is given to the petitioner to submithis explanation about the proposed revision and impugned noticesare issued within two years from the date of order, dated30.12.2016, this Court is not inclined to grant the relief assought for by the petitioner. For the above reasons, thejudgments relied on by the learned counsel for the petitionerare not applicable to the facts of the present case. 6. In view of the above, the Writ Petitions are liable to bedismissed and they are hereby dismissed. No costs. Consequently,connected Miscellaneous Petitions are closed. Sd/- Assistant Registrar(CS IV) //True Copy// Sub Assistant RegistrarkjTo 6. In view of the above, the Writ Petitions are liable to bedismissed and they are hereby dismissed. No costs. Consequently,connected Miscellaneous Petitions are closed. Sd/- Assistant Registrar(CS IV) //True Copy// Sub Assistant RegistrarkjTo Principal Commissioner of Income-Tax, Chennai – 600 008BSNL Building, Tower – II, C-WingNo.6, Greams Road,Chennai – 600 006. +1 cc to M/s.Hema Muralikrishnan Advocate sr 62166+1 M/s.M.V.Swaroop Advocate sr nos.62532 62531 dt 31/08 rk(co)aa30/08/2017