Mr.pallavarajha v. Principal Commissioner Of Income-Tax-Vi, 121, Uthamar Gandhi Salai, Nungambakkam, Chennai 600 034

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:26.09.2018 Reserved on 18.09.2018 Delivered on 26.09.2018C O R A M THE HONOURABLE Mr.JUSTICE K.RAVICHANDRABAABU W.P.No.1843 of 2018andWMP Nos.2292 and 2293 of 2018 Mr.Pallavarajha ...Petitionervs 1.Principal Commissioner of Income-Tax-VI, 121, Uthamar Gandhi Salai, Nungambakkam, Chennai 600 034. 2.Assistant Commissioner of Income-tax, Non-Corporate Ward 15(1), 121, Uthamar Gandhi Salai, Nungambakkam, Chennai 600 034. ...Respondents Prayer:Writ petition filed under Article 226 of the Constitutionof India for issuance of a writ of certiorari to call for therecords of the first respondent in respect of C.No.6120()/PCIT-6/2016-17 dated 20.03.2017 for the assessment year 2008-09 andquash the same. For Petitioner : Mr.M.V.Swaroop For Respondents : Mr.A.P.Srinivas Senior Standing Counsel (I.T) O R D E R The petitioner is aggrieved against the order of the firstrespondent dated 20.03.2017, passed under Section 264 of theIncome Tax Act, 1961, in respect of the assessment year 2008-09. 2. Through the impugned proceedings, the first respondentrejected the petition filed by the assessee under Section 264with further direction to the Assessing Officer to treat thelands in question as non-agricultural in nature and therefore, https://hcservices.ecourts.gov.in/hcservices/ as capital assets, in the hands of the assessee, exigible tocapital gain tax. 3.The following are the facts and circumstances, asprojected by the petitioner, which have lead to filing of thepresent writ petition: For Respondents : Mr.A.P.Srinivas Senior Standing Counsel (I.T) O R D E R The petitioner is aggrieved against the order of the firstrespondent dated 20.03.2017, passed under Section 264 of theIncome Tax Act, 1961, in respect of the assessment year 2008-09. 2. Through the impugned proceedings, the first respondentrejected the petition filed by the assessee under Section 264with further direction to the Assessing Officer to treat thelands in question as non-agricultural in nature and therefore, https://hcservices.ecourts.gov.in/hcservices/ as capital assets, in the hands of the assessee, exigible tocapital gain tax. 3.The following are the facts and circumstances, asprojected by the petitioner, which have lead to filing of thepresent writ petition: The petitioner is an individual engaged in the business ofreal estate. He owned various agricultural lands and wasgaining agricultural income during the financial year precedingthe relevant assessment year 2008-09. The petitioner and oneAnoop Bora jointly purchased 13.91 acres of agricultural landfrom the Official Liquidator, Madras High Court on 11.05.2005 bypublic auction. They also purchased another extent ofagricultural land measuring 13.14 acres during the same year.In 2006-07, they purchased further extent of 3.88 acres in thesame village. Thus, the total extent of land held by them was30.93 acres. Out of the said extent, they transferred 19.14acres of land to two individuals on 21.08.2006. During thefinancial year relevant to assessment year 2008-09, they soldthe remaining 11.29 acres to another individual on 30.05.2007.The lands in question are located in Sirunganallur, UnnamaliVillage and Kuzhipanthandalam village. The EncumbranceCertificate for all these lands evidences clearly that they areagricultural lands. The chitta, patta and the A-Registerrecords for the relevant period would also show that there werecrops during the year of sale and thus, they are onlyagricultural lands. Section 2(14) of the Income Tax Act, 1961,which defines capital asset, specifically excludes agriculturalland. Therefore, the petitioner did not offer this income totax in his return. His return was accepted and intimation underSection 143(1) was also sent. On 21.03.2014, a notice underSection 147 of the said Act was received by the petitioner forreopening the assessment on the ground that the lands inquestion were not agricultural lands. The petitionerparticipated in the assessment proceedings and submittednecessary documents. However, the second respondent passed anorder of assessment dated 30.03.2015 that the lands in questionare not agricultural lands and that the capital gains receivedby the said land is taxable as business income. Consequently,demand notice dated 30.03.2015 was issued demanding a sum ofRs.4,09,51,350/-. Thereafter, the petitioner preferred anappeal under Section 250(6) of the said Act before theCommissioner of Income Tax (Appeals). However, the said appealwas dismissed as withdrawn on 16.09.2016 at the instance of thepetitioner for pursuing the revision before the Commissioner ofIncome Tax under Section 264 of the said Act. The petitionerfiled the revision under Section 264 before the first respondentby contending that the lands are used for agricultural purposes;that the assessment had been reopened under Section 147 beyondfour years without there being any averment that the petitioner had not fully and truly disclosed material facts and that theorder and the demand notice was served on the petitioner after 9months, from the date on which it was passed. The petitioneralso contended before the first respondent that the claim of thejoint owner viz., Anoop Bora before his Assessing Officer thatthe subject matter lands are agricultural lands, was acceptedand the Department had dropped proceedings. Therefore, the verysame lands cannot be treated as non-agricultural lands, in thehands of the petitioner. However, the first respondent rejectedthe petition on 20.03.2017. A rectification petition filedunder Section 154 also came to be rejected on 17.01.2018 on thereason that the grounds raised in the rectification petition aredebatable. As no further appeal remedy is provided as againstthe order passed under Section 264, the present writ petition isfiled before this Court. 4. The respondents filed a counter affidavit, wherein itis stated as follows: The return of the income filed by the petitioner wasprocessed under Section 143(1) of the Act. Subsequently, thecase was reopened on account of materials gathered during asurvey under section 133A in the case of one Meena Sakariya andNarendra Sakariya on 24.03.2010. It was gathered during thesaid survey that the petitioner was engaged in real estateactivity through coordinated transactions of aggregating andselling the lands. Further perusal of the return revealed thatthe capital gain on the sale of the said lands was claimed asexempted amounting to Rs.5,37,19,960/-. Hence, it was concludedin the findings of the survey that the business income of theabove said sum on account of sale of land be taxed as per theprovisions of the Income Tax Act. Accordingly, after reopeningthe assessment under Section 147, the assessment order waspassed. The petitioner is not entitled to question thereopening. The Assessing Officer had no chance to form anopinion at the initial stage and hence, the concept of change ofopinion does not apply in the instant case. The assessment inthe case of the said Anoop Bora was completed under Section 143(3) on 23.12.2010. The facts, which came to the knowledge ofthe Department, after the survey under Section 133A in the caseof Meena Sakhariya and Narendra Sakhariya on 24.03.2010, werenot available to the Assessing Officer of Anoop Bora beforepassing the order of assessment on 23.12.2010 in his case. Evenotherwise, the principles of res judicata does not apply to theincome tax proceedings especially in a situation, where freshincriminating facts have emerged consequently. The assessee wasunable to discharge the primary onus by proving thatagricultural operations were carried out in the land in question. 5.Mr.M.V.Swaroop, learned counsel for the petitioner madehis oral submission. He also filed a written submission. The https://hcservices.ecourts.gov.in/hcservices/ sum and substance of the submissions made on behalf of thepetitioner are as follows: a) The writ petition is maintainable as against the orderpassed under Section 264 of the said Act, since there is noother alternative remedy available against the said order.Thus, the High Court can exercise its jurisdiction under Article226 and examine the factual aspects of the case. b) The Commissioner has the jurisdiction to hear apetition under Section 264, when the appeal before the CIT(A)was withdrawn, which amounts to waiver of right to appeal.Therefore, the bar in Section 264(4)(a) will not apply to thiscase. In this connection, (2018) 91 taxmann.com 196(Guj), NitinBabubhai Patel vs. Dharmendra Vishnubhai Patel, 52 ITR 780(All), Ajayapat Singhania vs. Gift Tax Officer & Others, 50 ITR578 (Bom), Jagmohandas Gokaldas vs Commissioner of Wealth Tax,Bombay, are relied on. b) The Commissioner has the jurisdiction to hear apetition under Section 264, when the appeal before the CIT(A)was withdrawn, which amounts to waiver of right to appeal.Therefore, the bar in Section 264(4)(a) will not apply to thiscase. In this connection, (2018) 91 taxmann.com 196(Guj), NitinBabubhai Patel vs. Dharmendra Vishnubhai Patel, 52 ITR 780(All), Ajayapat Singhania vs. Gift Tax Officer & Others, 50 ITR578 (Bom), Jagmohandas Gokaldas vs Commissioner of Wealth Tax,Bombay, are relied on. c) The case of the co-owner of the subject matter land wasnot considered by the first respondent. When the very same landwas held to be an agricultural land at the hands of the co-owner, the Revenue is not justified in treating the same as nonagricultural land at the hands of the petitioner. Thedepartment cannot pick and choose between two differentassessees, who are identically placed. In this connection, 249ITR 219 (SC), Union of India vs Kaumudini Narayan Dalal isrelied on. When the department procured the alleged freshmaterials on 24.03.2010 i.e.,9 months on completion ofassessment of the co-owner viz., Anoop Bora, it cannot claimthat the said materials were not in possession of the AssessingOfficer of Anoop Bora, while passing the scrutiny assessmentunder Section 143(3). The assessment of the said Anoop Bora wasnever reopened. Hence, it should be construed that the Revenuehas accepted the character of the land as agricultural. d) Entries in Government records such as patta, chitta, A-register, Encumbrance Certificate reflect the land as anagricultural land, where agricultural activities were carried onin the said assessment year. The Government records ought to betaken as primary evidence of the character of the land. e) The General Power of Attorney referred to by therespondents was entered into in subsequent assessment years andhence, it cannot be brought to tax in the assessment year 2008-09. The terms of the General Power of Attorney cannot be takenas proof of land, not being an agricultural land, since as onthe date of transfer, the said land in the hands of thepetitioner was an agricultural land. Intention of the purchaserof the property to use the land for non-agricultural purposecannot be a determinative factor to treat the same as https://hcservices.ecourts.gov.in/hcservices/ agricultural land in the hands of the assessee. In thisconnection, (2018) 96 taxmann.com (164) (Guj), PCIT vs HeenabenBhadresh Mehta, is relied on. If the lands are treated asagricultural land, the petitioner is entitled for exemption fromcapital gain tax. 6.Mr.A.P.Srinivas, learned Senior Standing Counsel for therespondents made his oral submission. He also filed a writtensubmission. The sum and substance of the submissions made onbehalf of the respondents are as follows: a) The petitioner is not justified in questioning thereopening, since the second respondent had reason to believethat the petitioner had not disclosed truly and fully the factby way of the claim of exempt income on account of sale of landin his return of income. Non disclosure of primary facts in thereturn of income does not attract the first proviso to Section147 of the Income Tax Act. As the original assessment was framedunder Section 143(1) and not in a regular assessment underSection 143(3), the Assessing Officer had no chance to form anopinion at the initial stage and hence, the concept of change ofopinion does not apply to the present case. In this connection,reliance is placed in the case reported in (2007) 161 Taxmann316 (SC), Assistant Commissioner of Income Tax vs Rajesh JhaveriStock Brokers (P) Ltd. b) The Assessing Officer of Anoop Bora passed theassessment order in a routine summary manner without consideringthe findings of the survey along with impounded materials fromthe premises of Meena Sakhariya and Narendra Sakhariya. Thus,the Assessing Officer of Anoop Bora was not in possession of theinformation regarding Anoop Bora's activity in sale of nonagricultural land, while concluding the assessment under Section143(3). The principle of res judicata does not apply to theincome tax proceedings. In this connection, (1963) 49 ITR 137(SC), New Jehangirvakil Mills Co. Ltd vs Commissioner of IncomeTax and (1961) 41 ITR 685 (SC), Raja Bahadur Visheshwara Singhvs Commissioner of Income Tax, are relied on. No discriminationis shown between the petitioner and the said Anoop Bora, moreparticularly, when the Assessing Officer of the petitioner andAnoop Bora are different. c) The Principal Commissioner of Income Tax has nojurisdiction under Section 264 to revise the assessment, oncethe assessee availed the appeal remedy. Once such appeal isfiled, no provision in the statute permitting for withdrawal ofthe same. Withdrawal of appeal would also amount to availingthe appeal remedy, even though it was stated that the reason forwithdrawal is to avail revision under Section 264. d) The order passed under Section 264(1) is notprejudicial to the interest of the petitioner. Therefore, thewrit petition is not maintainable. Non availability of furtherappeal remedy against the order made under Section 264(1) wouldnot compel the High Court to issue the writs. Factual aspectscannot be interfered with under Article 226 of the Constitutionof India. Assessee had failed to prove beyond the reasonabledoubt whether agricultural operations were being carried outjust before the date of sale. Confirmation receipts provided bythe lessees do not contain their identity proof and addresses.Therefore, those documents are of no evidential value. As perthe original assessment order, the petitioner sale proceeds aretaxed as income from the business activity but the firstrespondent treated the lands in question as non agricultural innature and therefore, the capital assets in the hands of theassessee liable to capital gains tax. The first respondentfound that the subject matter lands are not agricultural landsand therefore, such factual finding cannot be interfered withunder Article 226 of the Constitution of India. The petitioner,having availed the remedy of appeal, is not entitled to seekremedy under Section 264, since the Revisional Authority isbarred from revising order of Assessing Authority by virtue ofSection 264(4). In this connection, (2018) 91 taxmann.com 467(Karnataka), Nataraju (HUF) vs Principal Commissioner of IncomeTax, Mysuru, (2014) 44 taxmann.com 299 (Allahabad), YogendraPrasad Santhosh Kumar vs Commissioner of Income Tax and (1967)66 ITR 443 (SC), CIT vs Rai Bahadur Hardutroy Motilal Chamaria,are relied on. 7. Heard both sides, perused the materials placed beforethis Court and I have given careful consideration to thesubmissions made on behalf of the parties. 8. The petitioner is aggrieved against the order of thefirst respondent passed under Section 264 of the Income Tax Act,1961. The facts warranting the filing of the present writpetition and the rival contentions of the parties before thisCourt for and against the impugned order have been stated indetail supra and therefore, they are not reiterated once againhereunder. 7. Heard both sides, perused the materials placed beforethis Court and I have given careful consideration to thesubmissions made on behalf of the parties. 8. The petitioner is aggrieved against the order of thefirst respondent passed under Section 264 of the Income Tax Act,1961. The facts warranting the filing of the present writpetition and the rival contentions of the parties before thisCourt for and against the impugned order have been stated indetail supra and therefore, they are not reiterated once againhereunder. 9. In respect of assessment year 2008-09, in pursuant toreopening of the assessment under Section 147 of the Income TaxAct, the Assessing Officer passed an order of assessment on30.03.2015 under Section 143(3) read with Section 147 of thesaid Act, wherein and whereby, apart from the returned income ofRs.2,64,51,830/-, an addition of Rs.5,37,19,960/- was made,being the sale proceeds of the subject matter lands andconsequently, assessed the income as Rs.8,01,71,790/-. TheAssessing Officer, who originally treated the subject matterlands as agricultural lands, has however, subsequent to the reopening of the assessment, treated the same as nonagricultural lands and thus, made addition of the sale proceedsof such lands as stated above. It is the contention of thepetitioner that the subject matter lands were only agriculturallands at the relevant point of time and therefore, the saleproceeds of those lands are not taxable. 10. It is seen that as against the said order ofassessment dated 30.03.2015, the petitioner had filed an appealbefore the Commissioner of Income Tax (Appeals) on 04.01.2016.However, the petitioner made a request in writing on 09.09.2016before the said Appellate Authority to withdraw the said appealto pursue the revision petition before the Commissioner ofIncome Tax under Section 264 of the said Act. The AppellateAuthority, by his order dated 16.09.2016, dismissed the appealas withdrawn in view of the request made by the petitionerthrough their letter dated 09.09.2016. The relevant paragraphs3, 4 and 5 of the above said order dated 16.09.2016 of theAppellate Authority read as follows: "3. The Income-tax Non-Statutory form-51 (inshort, ITNS-51) was sent to the AO for confirmation.In the absence of a response from the AO, it ispresumed that facts stated in Form 35 are borne onrecords and that the AO does not wish to be present atthe hearing. The appeal was fixed for hearing byissuance of ITNS-37. In response to the notice, theappellant filed a letter on 09.09.2016 requesting towithdraw its appeal for the AY 2008-09 and submittedthe reasons for withdrawal as under: "I refer to the above mentioned subject and theappeal filed u/s 264A(1)(a) of the Income-tax Act,1961. Your assessee has preferred to file a revisionpetition before the Commissioner of Income-tax u/s 264of the Income-tax Act, 1961 based on the fact that thelearned AO has not appreciated the fact of the caseand the submission made by your assessee. Further theCommissioner of Income-tax has agreed to hear our caseand take up the matter for revision Based on theabove background I kindly request your good self toaccept my withdrawal of the appeal filed at your goodoffice." 4. The matter is considered. In view of therequest by the appellant vide letter dated 09.09.2016,this appeal is dismissed as withdrawn. 5. In the result, the appeal is dismissed. Thisorder is passed under section 250 read with section251 of the Act." https://hcservices.ecourts.gov.in/hcservices/ 4. The matter is considered. In view of therequest by the appellant vide letter dated 09.09.2016,this appeal is dismissed as withdrawn. 5. In the result, the appeal is dismissed. Thisorder is passed under section 250 read with section251 of the Act." https://hcservices.ecourts.gov.in/hcservices/ 11. No doubt, it is true that after filing the aboveappeal before the First Appellate Authority on 04.01.2016, thepetitioner filed the revision under Section 264 before the firstrespondent on 26.02.2016. Therefore, it is evident that thepetitioner approached both the Appellate Authority and theRevisional Authority one after another and challenged the orderof assessment. However, the petitioner has subsequentlywithdrawn the appeal before the Appellate Authority to pursuethe revision before the Revisional Authority as found supra. 12. It is vehemently contended by the learned counsel forthe respondents that the petitioner, having chosen to avail theappellate remedy and filed such appeal, is not entitled tomaintain the revision before the first respondent under Section264 even after withdrawal of the appeal. He thus contended thatthere is a specific bar under Section 264(4) in maintaining suchrevision, having availed such appellate remedy. It is hisfurther contention that even though the said appeal wassubsequently withdrawn, still the embargo made under Section 264(4) will operate against the petitioner in maintaining therevision, as withdrawal of the appeal cannot be construed tomean that the writ petitioner did not avail the appellate remedyat all. 13.On the other hand, it is contended on behalf of thepetitioner that once the appeal is withdrawn, that too, on thereasons stated in the said memo for pursuing the revision andonce such memo was accepted and the appeal was dismissed aswithdrawn based on such memo, it cannot be said that thepetitioner has availed the appellate remedy so as to draw thebar stipulated under 264(4) against the petitioner. 14. Perusal of the order passed by the FirstRespondent/Revisional Authority, impugned in this writ petition,does not indicate anywhere that the revision was rejected on theground of its maintainability. On the other hand, theRevisional Authority had proceeded to decide the revision onmerits and ultimately, rejected the same by observing that theassessee had failed to prove beyond reasonable doubt whether theagricultural operations were being carried out just before thedate of sale. Thus, the Revisional Authority, after rejectingthe revision, directed the Assessing Officer to treat thesubject matter lands in question as non agricultural in natureand therefore, captial assets in the hands of the assesseeexigible to captial gain tax. 15. The said order of the first respondent, impugned inthis writ petition, is not put to challenge by the Revenuequestioning on its maintainability. On the other hand, the saidorder is being challenged in this writ petition only by theassessee. It is also to be noted at this juncture that the https://hcservices.ecourts.gov.in/hcservices/ Revenue has neither opposed the withdrawal of the appeal beforethe Commissioner of Income Tax (Appeals) nor challenged the saidorder of the Appellate Authority, dismissing the appeal aswithdrawn, in view of the request made by the petitioner, beforethe next appellate forum. Likewise, the petitioner's letterdated 09.09.2016, was also not opposed by the Revenue.Therefore, much emphasis made by the learned counsel appearingfor the respondents on Section 264(4) of the Income Tax Act,1961, regarding the maintainability of the revision before thefirst respondent, cannot have any force. What the Revenueeither accepted or failed to challenge further, cannot beobjected to as the first time before this Court, that too in aproceedings at the instance of the Assessee. Revenue has neither opposed the withdrawal of the appeal beforethe Commissioner of Income Tax (Appeals) nor challenged the saidorder of the Appellate Authority, dismissing the appeal aswithdrawn, in view of the request made by the petitioner, beforethe next appellate forum. Likewise, the petitioner's letterdated 09.09.2016, was also not opposed by the Revenue.Therefore, much emphasis made by the learned counsel appearingfor the respondents on Section 264(4) of the Income Tax Act,1961, regarding the maintainability of the revision before thefirst respondent, cannot have any force. What the Revenueeither accepted or failed to challenge further, cannot beobjected to as the first time before this Court, that too in aproceedings at the instance of the Assessee. 16. (2018) 91 taxmann.com 467 (Karnataka), Nataraju vsPrincipal Commissioner of Income Tax, is relied on to contendthat the revision before the first respondent is notmaintainable. Perusal of the facts and circumstances of thesaid case would show that the assessee therein, instead offiling regular appeal before the First Appellate Authority tochallenge the order of assessment, has chosen to file therevision petition under Section 264 just before the expiry ofthe prescribed time period and therefore, the Karnataka HighCourt has found that remedy by way of revision under Section 264lies in a narrow compass and the said remedy cannot be treatedas a regular remedy bypassing the regular remedy of appeal. Thefacts and circumstances of the present case are totallydifferent, as discussed supra. Therefore, the above saiddecision is not applicable to the present case. 17. The learned counsel for the Revenue vehementlycontended that even though the appeal was withdrawn, in effect,it has to be treated that the petitioner has exhausted theappellate remedy and thus the revision before the firstrespondent was not maintainable. I have already pointed outthat the first respondent has not rejected the revision on theground of its maintainability, but by considering the merits ofthe matter. Even otherwise, the question as to whetherdismissal of the appeal as withdrawn can be treated as availingthe appellate remedy, has already been considered by theDivision Bench of the Bombay High Court in a case reported in 50ITR 578 (Bombay), Jagmohandas Gokaldas vs Commissioner of WealthTax, wherein it is observed that unless the question as to thevalidity of the complaint looked into or scrutinized by theAuthorities concerned viz., the Appellate Authority or theRevisional Authority, it cannot be said that the right conferredby the Act is fully exercised or exhausted. I am in fullagreement with the view taken in the above case. For betterunderstanding, the relevant portion of the order is extracted ashereunder: " The question that arises is when can an order besaid to be the subject of an appeal? According toMr.Palkhivala, as already stated, the order becomesthe subject of an appeal only when the merits of theorder appealed against are dealt with by the appellateauthority. While, on the other hand, according toMr.Joshi, the order appealed against is the subject ofan appeal when a competent appeal against that orderis filed in which a decision could be given by theappellate authority. " The question that arises is when can an order besaid to be the subject of an appeal? According toMr.Palkhivala, as already stated, the order becomesthe subject of an appeal only when the merits of theorder appealed against are dealt with by the appellateauthority. While, on the other hand, according toMr.Joshi, the order appealed against is the subject ofan appeal when a competent appeal against that orderis filed in which a decision could be given by theappellate authority. We find it difficult to accept Mr.Joshi'scontention. One of the shades of meaning of the word"subject" given is "that of which anything is said orof which the discourse treats". Understanding clause(b) in this sense it can only be said that whereanything is said in the appellate order of the orderappealed against, relating to the merits of the order,it can be said to be subject of an appeal, and thisappears to be the intention of the legislature inenacting clause (b). Looking to the scheme of theAct, in our opinion, the right conferred on anassessee is two-fold: he can get the validity of theorder of the Appellate Assistant Commissioner or theWealth tax Officer tested either at the hands of theappellate authority, viz., the Tribunal or theAssistant Commissioner, or get the validity of eitherof the orders tested at the hands of the Commissionerand unless the question as to the validity of theorder complained against is looked into or scrutinizedby the authorities concerned, viz., the appellateauthority or the revisional authority, it cannot besaid that the right conferred by the Act is fullyexercised or exhausted." 18. Perusal of the above observation of the Bombay HighCourt would show that the petitioner herein, after getting theappeal dismissed as withdrawn, was entitled to pursue his remedyunder Section 264 before the first respondent. No doubt, it istrue that the petitioner herein had in fact invoked bothjurisdiction simultaneously. However, before passing anyadverse order by any one of such authority on themaintainability of such proceedings, the petitioner had cleverlychosen to withdraw one of such proceedings viz., appeal.Thereafter, the Revisional Authority also proceeded to decidethe revision on merits only. Therefore, I do not find anyjustification on the objection made by the learned counsel forthe Revenue against the maintainability of the revision beforethe first respondent, before this Court as the first time. 19. (2014) 44 taxmann.com 299 (Allahabad), Yogendra PrasadSantosh Kumar vs Commissioner of Income-tax, is relied on by thelearned counsel for the respondents again on the maintainabilityof revision before the first respondent. A careful perusal ofthe facts and circumstances of the said case would show that theassessee therein, after filing an appeal before the Commissioner(Appeals), had filed an application for withdrawal of suchappeal and such application was rejected by the AppellateAuthority, who in turn, thereafter proceeded to decide theappeal on merits. Therefore, the Allahabad High Court foundthat the revision before the Revisional Authority under Section264, in that case, was barred by virtue of Sub Section (4) ofSection 264. The facts and circumstances of the present caseare totally different. In this case, the Appellate Authorityhad allowed the application for withdrawal and dismissed theappeal as withdrawn, in view of the reasons stated by thepetitioner for withdrawal viz., for pursuing the revision beforethe first respondent. Therefore, I do not think that the abovedecision is helping the respondents in any manner. 20. (1967) 66 ITR 443 (SC), Commissioner of Income-taxvs. Rai Bahadur Hardutroy Motilal Chamaria, is relied on by thelearned counsel for the respondents to contend that theAssessee, having once filed an appeal cannot withdraw it. Butin this case, the Appellate Authority had permitted the writpetitioner/appellant to withdraw the appeal so as to pursue hisremedy before the first respondent by way of revision underSection 264. Neither the said order of the Appellate Authoritynor the order of the first respondent in entertaining anddeciding the revision on merits was put to challenge by theRevenue. Therefore, the above contention of the Revenue cannotbe sustained. Consequently, the above decision of the ApexCourt is also factually distinguishable. 21. At this juncture, it is useful to note theobservations made by the Division Bench of the Gujarat HighCourt reported in (2018) 91 taxmann.com 196, Nitin BabubhaiRohit vs Dharmendra Vishnubhai Patel, wherein at paragraph No.9,it is observed as follows: "9. In terms of clause (a) of sub-section (4) ofsection 264, revisional powers would not be exercised,inter alia, in a case where the period of limitationfor filing appeal has not expired and the assessee hasnot waived the right of appeal. This is essentially toensure that at the hands of the same assessee a singleissue does not receive consideration at the hands oftwo separate and independent authorities, oneexercising appellate jurisdiction and the otherrevisional jurisdiction. Applying this principle tothe facts on hands, we find that the assessee had clearly made a choice to persuade the Commissioner ofIncome Tax to exercise his revisional powers undersection 264 of the Act and not pursue his appeal beforethe Appellate Commissioner. The revisional authoritytherefore correctly proceeded to decide the revisionpetition of the assessee and on facts correctly allowedthe same. This later observation needs no elaborationsince the order of the Commissioner is self explanatoryand eloquent. The assessee had made full disclosure ofthe capital gain tax and there was no failure on hispart to give necessary details thereof." 22. Likewise, the Allahabad High Court in its decisionreported in 52 ITR 780 (All), Ajayapat Snghani vs. GTO, hasobserved as follows: " Apart from authority I would also have beeninclined to hold that the assessee had a right eitherto have his grievance ventilated and determined onmerits by the Tribunal on appeal or by the Commissionerby way of revision. The choice necessarily must beonly that of the assessee and if he asks for permissionto withdraw his appeal filed before the Tribunal andthat permission is granted there is a clear indicationthat he does not want his grievance ventilated anddetermined by the Tribunal but by the Commissioner.That right or choice cannot be denied to him on anytechnical or theoretical grounds. So long as nodecision has been given on the merits or even on thequestion of limitation by the Tribunal, the casecannot, in my judgment, be said to have formed thesubject matter of an appeal to the Tribunal." 23. Therefore, the next question arises for considerationis as to whether the present writ is maintainable against theorder of the first respondent and if the answer is inaffirmative, whether the order of the first respondent issustainable on merits. 23. Therefore, the next question arises for considerationis as to whether the present writ is maintainable against theorder of the first respondent and if the answer is inaffirmative, whether the order of the first respondent issustainable on merits. 24. It is contended by the learned counsel for therespondents that the order passed under Section 264, since notbeing an order prejudicial to the assessee, he is not entitledto challenge the same before this Court. He invited thisCourt's attention to Section 264(1) of the said Act, stipulatingthat the Principal Commissioner or Commissioner may pass suchorder, not being an order prejudicial to the assessee, as hethinks fit. I am not convinced on the above objection raised bythe Revenue. No doubt, Explanation 1 to Sub Section (7) ofSection 264 contemplates that an order by the PrincipalCommissioner or Commissioner declining to interfere shall, forthe purpose of Section 264, be deemed not to be an order https://hcservices.ecourts.gov.in/hcservices/ prejudicial to the assessee. But that does not mean that eventhough the Authority under Section 264 rejected the revision,thereby declining to interfere with the order put to challengein revision, the aggrieved assessee cannot have any furtherremedy at all against the said order made under Section 264.There is no dispute to the fact that against an order made underSection 264, no further statutory appellate remedy is availableto the aggrieved party. Therefore, it leads to an irrebutableconclusion that, under such circumstances, a remedy underArticle 226 of the Constitution of India is always available tothe aggrieved party to challenge the order made under Section264. Therefore, I reject the above objection made by theRevenue on the maintainability of the writ petition. It isfurther contended that the very revision itself was notmaintainable before the first respondent and consequently, theorder passed by the first respondent cannot be challenged by wayof the present writ petition. I have already pointed out thatthe very issue against the maintainability of the revisionbefore the first respondent, having not been raised by theRevenue before the first respondent, the same cannot be raisednow before this Court as first time. Therefore, this Court isof the view that the writ petition is maintainable and hence, ithas to be seen as to whether the order passed by the firstrespondent is sustainable on merits. 25. Now let me see on merits. I have given a carefulconsideration to the order passed by the first respondent,impugned in this writ petition. The question before the firstrespondent was whether the lands in question are agricultural ornon agricultural lands. The first respondent, though pained tomake 13 pages order, while most of the pages contained onlyextract of some case laws, has however, confined his findingsonly to one paragraph viz., paragraph No.4, which reads asfollows: "4. The following principles are merged from thecase laws discussed as above:- 1. The assessee has to mandatorily provideevidence to prove beyond doubt that agriculturaloperations were being carried out before the sale ofthe lands in question. 2. Agricultural lands cease to be agriculturallands the time the assessee agrees to sell the same foruse as house sites. This comes from the decision ofthe jurisdictional High Court in Meccane IndustriesLtd. (supra) which is in the nature of bindingprecedent in the territory of Tamil Nadu andPondicherry. "4. The following principles are merged from thecase laws discussed as above:- 1. The assessee has to mandatorily provideevidence to prove beyond doubt that agriculturaloperations were being carried out before the sale ofthe lands in question. 2. Agricultural lands cease to be agriculturallands the time the assessee agrees to sell the same foruse as house sites. This comes from the decision ofthe jurisdictional High Court in Meccane IndustriesLtd. (supra) which is in the nature of bindingprecedent in the territory of Tamil Nadu andPondicherry. Coming to the first aspect, the evidence provided bythe assessee cannot be accepted as the column inofficial records where the assessee has to state thename and survey number of the lessee who acquired theland for cultivation purposes is not filled in a propermanner. As per the official records no such name ofthe lessees have been provided. Thereafter, theconfirmation receipts provided by these lessees do notcontain their identity proofs and addresses. Suchconfirmatory certificates are of no evidential value asthe persons who have signed are not verifiable. Theassessee has simply furnished self serving certificatesprepared at his convenience. Thus, the assessee hasfailed to prove beyond reasonable doubt whether theagricultural operations were being carried out justbefore the date of sale. Coming to the second aspect, the common clausein the two agreements furnished by the assessee arereproduced as under: 1.WHEREAS my attorney is authorised by us by this deedof irrevocable General Power of Attorney to convey andsell and to alienate and to create charge on the entireproperty to be converted by the attorney herein ashouse sites mentioned in the schedule hereunder to thethird persons as its discretion and decision.On this aspect, the case of the assessee is on allfours with respect to judgment of the jurisdictionalHigh Court in Meccane Industries Ltd. (supra)." 26. No doubt the first respondent has extracted variousdecisions in his order. But there is no discussion of the factsand circumstances of the present case and finding as to how suchfacts and circumstances would fall under the purview of thefacts and circumstances of the case laws extracted and the viewexpressed therein. Mere extraction of few case laws is notsufficient in the absence of any discussion on the same asstated supra. 27. The first respondent has chosen to reject the revenuerecords filed by the petitioner only on the reason that theentries in the said records were not made in a proper manner.The first respondent found that the names of the lessees havenot been shown in the revenue records. Likewise, he found thatthe confirmation receipts provided by the lessees do not containtheir identity proof and addresses. Therefore, the firstrespondent had come to the conclusion that the assessee hadfailed to prove beyond reasonable doubt with regard to thenature of the land in dispute. https://hcservices.ecourts.gov.in/hcservices/ 27. The first respondent has chosen to reject the revenuerecords filed by the petitioner only on the reason that theentries in the said records were not made in a proper manner.The first respondent found that the names of the lessees havenot been shown in the revenue records. Likewise, he found thatthe confirmation receipts provided by the lessees do not containtheir identity proof and addresses. Therefore, the firstrespondent had come to the conclusion that the assessee hadfailed to prove beyond reasonable doubt with regard to thenature of the land in dispute. https://hcservices.ecourts.gov.in/hcservices/ 28. First of all, it is to be noted that the firstrespondent has not doubted the genuineness of the officialdocuments viz., the Encumbrance Certificate, Chitta, Patta andA-Register filed by the assessee. If a column to indicate thename of the lessee is not filled in those documents, it cannotbe treated as fatal to the case of the petitioner, if othermaterial entries made in those documents would lead to areasonable conclusion that the lands in question are onlyagricultural lands or they were put to agricultural operationsat the relevant point of time. In any event, if those revenuerecords maintained and issued by the concerned Department lacksome details, it can always be ascertained from thoseauthorities, so long as the very genuineness of those documentsis not doubted. Equally, if the confirmation certificatesprovided by the lessees do not contain the identity and addressof those persons, the first respondent could have very wellcalled upon the petitioner to furnish those details and probedfurther. Without doing so, the first respondent has chosen toreject those confirmation certificates also, in a casual manner,which in my considered view, is not proper. 29. Apart from the above aspects, one more materialfactor has to be taken note of in this case, which the firstrespondent has totally failed to refer and consider. It is thecase of the petitioner that the lands in question were purchasedby the petitioner and another person by Anoop Bora as jointowners. There is no dispute to the fact that at the hands ofthe said joint owner viz., Anoop Bora, the subject matter landswere treated as agricultural lands by the very same income taxDepartment, while making the order of assessment for therelevant period. The petitioner has specifically raised thatissue in his application filed under section 264. Even thoughsuch issue was raised by the petitioner, the first respondenthas not at all traversed to the same and answered the saidissue, while rejecting the application. 30. No doubt, it is true that the learned counsel for therespondents sought to contend that the Assessing Officer ofAnoop Bora passed the assessment order without considering thefindings of the survey report along with impounded material fromthe premises of two other individuals. However, the factremains that the said order of assessment passed in respect ofthe said Anoop Bora, being the joint owner of the subject matterland, by treating the same land as agricultural land, has notbeen either reopened or revised. On the other hand, it isadmitted that the said assessment order stands. Therefore, ifthe same land is treated by another Assessing Officer asagricultural land, the question as to how the Assessing Officerof the petitioner is justified in treating the same as nonagricultural land, is certainly a question needs to be addressedand answered by the first respondent by considering the facts and circumstances, especially when it was raised before him.The first respondent has not at all considered the said issue.At this juncture, the observation made by the Apex Courtreported in 249 ITR 219 (SC), Union of India vs KaumudiniNarayan Dalal, is relevant to be noted wh