K.peter Jeyakumar v. The Commissioner Of Income Tax-I

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19.10.2011 CORAM THE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIAN W.P.(MD)NO.10188 of 2011and M.P.(MD)Nos.1 and 2 of 2011 1.A.Jebasundari 2.K.Joseph Packiaraj3.K.Francis Ignatius Roche 4.K.James Baskar 5.K.Peter Jeyakumar ... Petitioners Versus 1. The Commissioner of Income Tax-I, No.2 V.P.Rathinasamy Nadar Road, Bibikulam, Madurai – 625 002. 2. The Income Tax Officer, Ward I/II/TIN, Tuticorin. Ward I/II/TIN, Tuticorin. 3. The Tax Recovery Officer, O/o. The Tax Recovery Office, 6T, North Cotton Road, Tuticorin – 628 001.... Respondents 6T, North Cotton Road, Tuticorin – 628 001.... Respondents PRAYER : Writ petition is filed under Article 226 of theConstitution of India praying to issue a Writ of CertiorarifiedMandamus, to call for the records relating to proceedings inC.No.407/09/CIT-I/2011-12 dated 19.08.2011 of the first respondentand quash the same and direct the first respondent to take therevision application in C.No.407/09/CIT-I/2011-12/MDU on file, filedby the petitioners under Section 264 of Income Tax Act, 1961 anddispose the same. For Petitioner : Mr.AR.L.Sundaresan Senior Counsel Senior Counsel For Respondents : Mr.R.Sathiamoorthy Senior Standing Counsel https://hcservices.ecourts.gov.in/hcservices/ for Income Tax O R D E R The petitioners have come up with the above writ petitionchallenging an order by which the petition for revision submittedunder Section 264 of the Income Tax Act, 1961 was rejected on theground that it was not accompanied by a petition to condone the delay. 2. Heard Mr.AR.L.Sundaresan, learned Senior Counsel for thepetitioners and Mr.R.Sathiamoorthy, learned Senior Standing Counselfor the Income Tax Department. 3. In respect of the Assessment Years 1979-1980 to 1985-1986 (7Assessment Years), independent orders of assessment were passed bythe Income Tax Officer on 28.07.2009. The petitioners first filedappeals under Section 254 within the period of limitation. They wereactually filed on 07.10.2009. 4. However on a change of mind, the petitioners filed revisionsunder Section 264(1) on 27.12.2010. But at that time the appealsfiled by the petitioners on 07.10.2009 were actually pending.Therefore the revision petitions could not be entertained. 5. Realising this difficulty the petitioners withdrew theappeals with liberty to work out their remedies in the revisionpetitions. The Commissioner of Income Tax Department (Appeals) passedan order on 29.07.2011 permitting to withdraw all the appeals. 6. In the meantime the petitioners filed fresh revisionpetitions on 25.07.2011. After the appeals were permitted to bewithdrawn on 29.07.2011, the petitioners also filed condone delaypetitions on 01.08.2011. 7. However by a common order dated 19.08.2011, the revisionalauthority has rejected all the revisions on the ground that as theywere not accompanied by condone delay petitions and that condonedelay petitions filed after the filing of the revision petitionscannot be entertained. Aggrieved by the said order the petitionershave come up with the above writ petition. 8. The short question that arises for consideration is as towhether the rejection of the revisions by the revisional authoritywithout considering the condone delay petitions on merits, is properor not. 9. Section 264(1) entitles the assessee to file an applicationfor revision of an order of assessment. But sub-Section (4) ofSection 264 indicates the restrictions for the exercise of the powerof revision. Under sub-Section (4), a petition for revision cannot beentertained if an appeal is pending before the Commissioner or if theright of appeal has not been waived. The petitioners have, bywithdrawing the appeals, waived the right of appeals. https://hcservices.ecourts.gov.in/hcservices/ 8. The short question that arises for consideration is as towhether the rejection of the revisions by the revisional authoritywithout considering the condone delay petitions on merits, is properor not. 9. Section 264(1) entitles the assessee to file an applicationfor revision of an order of assessment. But sub-Section (4) ofSection 264 indicates the restrictions for the exercise of the powerof revision. Under sub-Section (4), a petition for revision cannot beentertained if an appeal is pending before the Commissioner or if theright of appeal has not been waived. The petitioners have, bywithdrawing the appeals, waived the right of appeals. https://hcservices.ecourts.gov.in/hcservices/ 10. The proviso to sub-Section (3) of Section 264 confers powerupon the revisional authority to condone the delay in filing therevision petitions. While sub-Section (3) prescribes a period oflimitation of one year for filing revisions, the proviso conferspower for condonation of delay. 11. Therefore it is not really material as to whether on thedate on which the revision petitions were filed they were accompaniedby condone delay petitions or not. If before the rejection of therevision petitions, condone delay petitions had been filed, the firstrespondent could have considered the condone delay petitions onmerits. The fact that the revisions were not accompanied by condonedelay petitions would only be a curable defect and hence therespondents should consider the condone delay petitions. 12. In view of the above, the writ petition is allowed and theimpugned order is set aside and the first respondent is directed topass orders on the condone delay application and take up therevisions themselves and dispose of all the revisions within a periodof three months from the date of receipt of a copy of this order.Consequently, connected miscellaneous petitions are closed. Nocosts. Sd/- Assistant Registrar (Records) /True Copy/ To Sub Assistant Registrar 1. The Commissioner of Income Tax-I, No.2 V.P.Rathinasamy Nadar Road, Bibikulam, Madurai – 625 002. 2. The Income Tax Officer, Ward I/II/TIN, Tuticorin. 3. The Tax Recovery Officer, O/o. The Tax Recovery Office, 6T, North Cotton Road, Tuticorin – 628 001. +1 CC to Mr.AN.Ramanathan, Advocate (SR.No.36567) W.P.(MD)NO.10188 of 201119.10.2011