M/S.sharp Toolsrepresented By Its Partnerk.r.pandian v. The Principal Commissioner Of Income Tax-163, Race Coursecoimbatore 641 018

Reserved on : 17.10.2019Delivered on : 23.10.2019 CORAM THE HON'BLE MR.JUSTICE K.RAVICHANDRABAABU W.P.No.18185 of 2019 M/s.Sharp ToolsRepresented by its PartnerK.R.Pandian ..Petitioner vs The Principal Commissioner of Income Tax-163, Race CourseCoimbatore 641 018. ..Respondent Writ Petition filed under Article 226 of the Constitutionof India praying to issue a Writ of Certiorarified Mandamus,calling for the records of the respondent-Principal Commissionerof Income Tax-1, Coimbatore in his file C.No.121(9)/264/PCIT-1,CBE/2017-2018 dated 18.03.2019 for assessment year 2013-2014directing the respondent to entertain and consider the revisionpetition on merits. For Petitioner : Mr.R.KumarFor Respondent : Mr.A.N.R.Jayapratapstanding counsel forMr.A.P.Srinivas, Senior Standing Counsel O R D E R Challenge made in this writ petition is against the orderof the respondent dated 18.03.2019 passed under Section 264 ofthe Income Tax Act, 1961 (for brevity "IT Act") relevant to theassessment year 2013-2014. 2. The case of the petitioner, in short, is as follows:The petitioner is carrying on business as manufacturer ofEngineering goods. For the relevant assessment year, thepetitioner filed their return on 30.09.2013 declaring totalincome as "Nil" after setting off of earlier year losses. In 1 https://hcservices.ecourts.gov.in/hcservices/ column No.14 of the said return of income, under the head"Debits to Profit and Loss Account", "compensation toEmployees",thepetitionerenteredthefigureasRs.1,38,59,509/- against the correct amount of Rs.1,87,82,244/-.The claim of Rs.1,87,82,244/- comprises of Labour charges to thetune of Rs.56,12,426/- Wages to the tune of Rs.75,14,652/- andSalary and Bonus to the tune of Rs.56,55,166/-. The differenceon account of the wrong entry being Rs.49,22,735/- was reckonedas the income of the petitioner in the intimation dated04.05.2014 issued under Section 143(1) of the IT Act and demandof Rs.17,37,280/- was raised comprising tax and interest. Afteradjusting tax credit of Rs.3,17,381/- the balance tax payablewas determined as Rs.14,19,900/-. On receipt of the saidintimation and realizing the mistake, which has crept ininadvertently while filling up the quantum in column No.14(i) ofthe return, a rectification return was filed on 09.01.2016. Thesaid return was not processed by the Central Processing Centre,since the return was considered as revised return filed beyondthe specified time under Section 139(5) of the IT Act. Thepetitioner made an application to the Assistant Commissioner ofIncome Tax, for rectification under Section 154 of the IT Act.The Assessing Officer, rejected the plea for rectification, byhis order dated 24.10.2017, stating that the claim was belated.Thereafter, the petitioner filed revision petition under Section264 of the IT Act on 25.01.2018 before the respondent statingthat the claim of Rs.49,22,735/-, being the difference betweenactual expenditure of Rs.1,87,82,244/- and the expenditure shownin the returns, duly supported by profit and loss account filedalong with the return of income and that the mistaken claim ofRs.1,38,59,509/- was due to typographical error. However, therespondent, by the impugned order has disposed the revision byobserving that the petitioner has to file a revised return ofincome and however, the time for filing the same had alreadyexpired. Therefore, the present writ petition is filed beforethis Court. 3. The respondent filed a counter affidavit, wherein, it isstated as follows: 3. The respondent filed a counter affidavit, wherein, it isstated as follows: The Assessee filed the petition dated 22.01.2018 underSection 264 of the IT act, to process the rectified return andto correct the mistake in the assessed income. The Assessee hasfiled the revised return claiming certain inadvertent errorsthat had crept in the original return and the processing of thesame had resulted in a demand, that the Assessee felt wasflawed. The revised return of income filed on 09.01.2016 wasnot taken up for processing, since the revised return was filedbeyond the due date provided under Section 139 of the IT Act.The remedy in the present case to the pleas of the Assessee 2 would not lie under Section 264 of the IT Act. The logicalremedy is to rectify the entries made in the return of incomeunder the relevant columns, obviously by filing a revised returnof income, for which, the time period had already been expired.The revision petition filed by the Assessee was thoroughlyexamined and decided on merits and in accordance with law. 4. A rejoinder is also filed by the petitioner disputingthe contentions raised in the counter affidavit. 5. The learned counsel for the petitioner, afterreiterating the contentions raised in the affidavit filed insupport of this writ petition, further submitted as follows:The Commissioner has power under Section 264 of the IT Act,to grant the relief. The Commissioner has accepted in his orderthat the Assessee had committed an error inadvertently whilemaking the entries. The Commissioner has also advised theAssessee to file a revised return for seeking the relief andhowever, further observed that the time for filing such revisedreturn had already expired. Even if the revised return is notfiled, the Commissioner, by exercising his power under Section264 of the IT Act, can grant the relief. The respondent failedto note that Circular No.14 of 1955 dated 11.04.1955 empowersthe authorities to permit the correction of mistake and that theDepartment must not take advantage of ignorance of an Assesseeas to his rights. The application under Section 264 of the ITAct, was filed before the respondent within one year from thedate of rejection of the rectification return. 6. In support of the above contention, the learned counselfor the petitioner relied on the following decisions:(i) [2016] 75 taxmann.com 298 (Ker), Transformers &Electricals Kerala Ltd., Vs. Deputy CIT. (ii) [2017] 394 ITR 247 (Mad), Sri Selvamuthukumar Vs. CIT.(iii) [2018] 402 ITR 271 (Mad), M/s.Bali Trading Pvt. Ltd., Vs. Principal CIT.(iv) [2016] 386 ITR 643 (Del.), Vijay Gupta Vs. CIT. 7. Per contra, the learned standing counsel for therespondent, after reiterating the contentions raised in thecounter affidavit, has further submitted as follows:The original return was filed on 30.09.2013 and intimationunder Section 143(1) was given on 04.05.2014. Only afterreceiving the intimation, the rectification of return was filedby the Assessee on 09.01.2016, that too, with a delay of twoyears. It is not the revised return and on the other hand, itis only the rectification return. Section 139(5) of the IT Act,contemplates that a revised return has to be filed within one year from the date of filing of the original return. TheCommissioner can exercise his power under Section 264 of the ITAct, subject to the provision of the Act and therefore, hecannot extend the time for filing the revised return as there isno power for the Commissioner to condone the delay for filingsuch return. Therefore, the impugned order was rightly passedby the respondent. 8. Heard both sides and perused the materials placed beforethis Court. year from the date of filing of the original return. TheCommissioner can exercise his power under Section 264 of the ITAct, subject to the provision of the Act and therefore, hecannot extend the time for filing the revised return as there isno power for the Commissioner to condone the delay for filingsuch return. Therefore, the impugned order was rightly passedby the respondent. 8. Heard both sides and perused the materials placed beforethis Court. 9. The petitioner is an Assessee under the respondent-Department. For the assessment year 2013-2014, the petitionerfiled their return on 30.09.2013. While filling up the columnstherein, the petitioner, in Column No.14, under the head "Debitsto Profit and Loss Account", "Compensation to Employees" and"Total Compensation to Employees", has entered the figure ofRs.1,38,59,509/-, which according to the petitioner is incorrectfigure and on the other hand, the actual figure towards the"Total Compensation to Employees" ought to have been entered isRs.1,87,82,244/-. The break up details is also given by thepetitioner as to how such sum is arrived as follows:(i) Labour ChargesRs. 56,12,426/-(ii) WagesRs. 75,14,652/-(iii) Salary & BonusRs. 56,55,166/-TotalRs. 1,87,82,244/- Therefore, it is contended that the above mistake is pure andsimple typographical error. 10. The above claim of the petitioner is not without anymaterial support. On the other hand, it is not in dispute thatthe profit and loss account filed along with the return ofincome supports the above claim of the petitioner. Therefore,it is evident that only due to typographical error, lessorfigure was entered, in column "Total Compensation to Employees"as Rs.1,38,59,509/-, instead of Rs.1,87,82,244/-. No doubt,such error can be rectified by filing a revised return ascontemplated under Section 139(5) of the IT Act, any time beforethe end of the relevant assessment year or before completion ofthe assessment, whichever is earlier. Though the petitioner hasnot filed any revised return within such time, however, onreceipt of an intimation under Section 143(3) of the IT Act,dated 04.05.2014, the petitioner had realized the mistake andfiled a rectification return on 09.01.2016. It is true thatrectification return was filed nearly after two years from thedate of receipt of Section 143(1) intimation. The saidrectification return was rejected by the Assessing Officer by proceedings dated 24.10.2017 on the reason that the same was notfiled within the time and thus, it is not valid and cannot besustained. Thereafter, the Assessee filed an application underSection 264 of the IT Act on 25.01.2018, admittedly, within oneyear from the date of the order rejecting the rectificationreturn. The respondent before whom, the said revision wasfiled, passed the impugned order, wherein at Paragraph Nos.9,10, & 11 he observed as follows:"9. The Assessee in its P&L account had claimed expenditure under the grouping"Compensation to Employees" inclusive oflabour charges of Rs.56,12,426/- wages ofRs.75,14,652/- and salary and bonus ofRs.56,55,166/-. However, as against thetotal of Rs.1,87,82,244/- the Assessee hadentered an amount of Rs.1,38,59,509/-. Thedifference on account of the wrong entrybeing Rs.49,22,735/- the amount that wasreckoned as the income of the Assessee forthe assessment year in question. claimed expenditure under the grouping"Compensation to Employees" inclusive oflabour charges of Rs.56,12,426/- wages ofRs.75,14,652/- and salary and bonus ofRs.56,55,166/-. However, as against thetotal of Rs.1,87,82,244/- the Assessee hadentered an amount of Rs.1,38,59,509/-. Thedifference on account of the wrong entrybeing Rs.49,22,735/- the amount that wasreckoned as the income of the Assessee forthe assessment year in question. 10. It would be of significance tomention that the Assessee had in thecertified copy of P&L account uploaded alongwith the return of income, placed on recordsand perused by me, has booked theexpenditures on account of labour charges atRs.56,12,426/-, wages at Rs.75,14,652/- andSalary & bonus at Rs.56,55,166/-.11. From the aforesaid it would beclear that the Assessee had committed anerror, though inadvertent, for which hewould be fully responsible, in its return ofincome which had resulted in the adoption ofincome by CPC at Rs.49,22,738/- and theconsequent raising of demand of tax." 11. Perusal of the above findings of the respondent wouldshow that he in fact, found that the error committed by theAssessee was inadvertent and that the expenditure shown underthe head "Compensation to Employees" are genuine, since suchexpenditures are supported by the certified copy of the Profitand Loss Account uploaded along with the return of income.However, after finding so, the respondent, though advised theAssessee to file a suitable revised return, has also made anobservation that the time stipulated for filing such revisedreturn had already expired. Thus, in effect, the respondentthough found that the mistake is inadvertent and that the claim is bona fide, has not granted any relief to the petitioner. 12. Under the above stated facts and circumstances, it isto be seen as to whether the respondent is justified in passingthe impugned order without granting any relief to thepetitioner. Section 264 of the IT Act, deals with the procedurefor filing revision and the power and scope of the respondentherein to consider such revision, which reads as follows:Section 264 : Revision of other orders (1) In the case of any order other thanan order to which section 263 applies passedby an authority subordinate to him, the 4[Principal Commissioner or Commissioner] may,either of his own motion or on an applicationby the assessee for revision, call for therecord of any proceeding under this Act inwhich any such order has been passed and maymake such inquiry or cause such inquiry to bemade and, subject to the provisions of thisAct, may pass such order thereon, not beingan order prejudicial to the assessee, as hethinks fit.(2) The [Principal Commissioner orCommissioner] shall not of his own motionrevise any order under this section if theorder has been made more than one yearpreviously.(3) In the case of an application forrevision under this section by the assessee,the application must be made within one yearfrom the date on which the order in questionwas communicated to him or the date on whichhe otherwise came to know of it, whichever isearlier:Providedthatthe[PrincipalCommissioner or Commissioner] may, if he issatisfied that the assessee was prevented bysufficient cause from making the applicationwithin that period, admit an application madeafter the expiry of that period.(4) The [Principal Commissioner orCommissioner] shall not revise any orderunder this section in the following cases -(a) where an appeal against the orderlies to the Deputy Commissioner (Appeals) ortothe4[PrincipalCommissionerorCommissioner] (Appeals) or to the Appellate Tribunal but has not been made and the timewithin which such appeal may be made has notexpired, or, in the case of an appeal to the4[Principal Commissioner or Commissioner](Appeals) or to the Appellate Tribunal, theassessee has not waived his right of appeal;or Tribunal but has not been made and the timewithin which such appeal may be made has notexpired, or, in the case of an appeal to the4[Principal Commissioner or Commissioner](Appeals) or to the Appellate Tribunal, theassessee has not waived his right of appeal;or (b) where the order is pending on anappeal before the Deputy Commissioner(Appeals); or (c) where the order has been made thesubject of an appeal to the 4[PrincipalCommissioner or Commissioner] (Appeals) or tothe Appellate Tribunal. (5) Every application by an assessee forrevision under this section shall beaccompanied by 1[a fee of five hundredrupees]. [(6) On every application by an assesseefor revision under this sub-section, made onor after the 1st day of October, 1998, anorder shall be passed within one year fromthe end of the financial year in which suchapplication is made by the assessee forrevision. Explanation: In computing the period oflimitation for the purposes of this sub-section, the time taken in giving anopportunity to the assessee to be reheardunder the proviso to section 129 and anyperiod during which any proceeding under thissection is stayed by an order or injunctionof any court shall be excluded.] [(7) Notwithstanding anything containedin sub-section (6), an order in revisionunder sub-section (6) may be passed at anytime in consequence of or to give effect toany finding or direction contained in anorder of the Appellate Tribunal, 3[NationalTax Tribunal,] the High Court or the SupremeCourt.]Explanation 1: An order by the 4[Principal Commissioner or Commissioner]declining to interfere shall, for thepurposes of this section, be deemed not to bean order prejudicial to the assessee.Explanation 2: For the purposes of thissection, the Deputy Commissioner (Appeals) shall be deemed to be an authoritysubordinate to the 4[Principal Commissioneror Commissioner]. 13. A careful perusal of the above provision of law wouldundoubtedly show that it empowers the Principal Commissioner orthe Commissioner to exercise the revisional jurisdiction over"any order" other than the order to which Section 263 applies,and that such power is wider and conferred on such authority toset right things, wherever he finds that an injustice has beendone to the Assessee. No doubt before passing any order underSection 264 of the IT Act, it is open to the said authority tomake such enquiry or cause such enquiry to be made. However,such order should not be prejudicial to the Assessee. 14. The power and scope under Section 264 of the IT Act,have been considered by the Courts. In a decision rendered bythe High Court of Kerala, reported in [2016] 75 taxmann.com 298(Ker), Transformers & Electricals Kerala Ltd., Vs. Deputy CIT.,observed at Paragraph No.8 as follows: 8. In fact the judgment in Goetze (India) Ltd. (supra) was with reference tothe power of the Tribunal under Section 254of the IT Act which can have no basis forthe power to be exercised by theCommissioner under Section 264 of the ITAct. Very wide powers have been conferred onthe Commissioner under Section 264 of the ITAct to conduct an enquiry to be made and topass such orders, as he thinks fit. In theimpugned order, the Commissioner proceeds onthe basis that the petitioner had not fileda revised return for the year 2008-09. It ispointed out by the petitioner that the timefor filing a revised return had alreadyexpired and once the said period hasexpired, revised return cannot be filed. Thequestion is whether, in the absence offiling a revised return, a claim fordeduction for the aforesaid amount ispermissible for the assessment year 2008-09.As held by a Division Bench in ParekhBrothers (supra), there is no limit toexercise the jurisdiction under Section 264of the IT Act. That was also a case in whichthe claim was not made by the assessee inthe return or at the time of arguments whenthe assessment was made. In such an instance, the Division Bench held that, evenassuming that the assessment order wascorrect, still it is open for the assesseeto seek the revisional jurisdiction inrespect of an item which was not made by wayof a mistake. Therefore, the jurisdiction ofthe Commissioner to pass orders even if arevised return is not filed, is very muchavailable. 15. In [2017] 394 ITR 247 (Mad), Sri Selvamuthukumar Vs.CIT, the Division Bench of this Court has observed at ParagraphNos.9 & 13 as follows: 9. Mr. Swaminathan would refer to thejudgment of the Division Bench of the AndhraPradesh High Court in M.S. Raju Vs. DeputyCommissioner of Income Tax (MANU/AP/0956/2007: 298 ITR 373) which has expressed a view tothe effect that the import of the word'record' as set out in the Circular (supra)would be restricted to the power undersection 263 only and not section 264. Thedistinction noted by the Division Bench inthat case was that the power of revisionunder section 263 of the Act was intended tobe exercised in cases where the interests ofrevenue were prejudiced and it was for thisreason that the inquiry of the Commissionerof Income Tax was not limited only tomaterial available before the assessingofficer, but also material obtainedsubsequently. The power under section 264 ofthe Act is, in fact as wide a power, and onethat is intended to prevent miscarriage ofjustice. Courts have consistently taken aview that the conferment of powers undersection 264 of the Act is to enable theCommissioner to provide relief to anassessee, where the law permits the same.Reference may be made to the decisions of theGujarat High Court in C.Parikh and Co. Vs.Commissioner of Income Tax (MANU/GJ/0013/1979: 122 ITR 610); Ramdev Exports Vs.Commissioner of Income Tax (MANU/GJ/0313/2001: 251 ITR 873); Kerala High Court in ParekhBrothers Vs. Commissioner of Income Tax andCalcutta High Court in Smt. Phool Lata Somani Vs.CommissionerofIncomeTax(MANU/WB/0081/2005 : 276 ITR 216). In thisview of the matter, we see no reason to takea different view on the interpretation of theword 'record' occurring in section 264 of theAct from that expressed by the Central Boardof Direct Taxes in the Circular extractedabove. The order under section 144A dated31.12.2007 is thus part of the record andought to have been take into consideration indeciding the petition under section 264 ofthe Act. 13. The relief provided in terms ofsection 139(5) is specific to the correctionof a wrong statement or an omission in theoriginal return by way of a revised return.The power under section 264 of the Actextends to passing any order as the PrincipalCommissioner or Commissioner may think fitafter making an inquiry and subject to theprovisions of the Act, either suo-moto or onan application by the assessee. Though theremedies over lap, power under section 264 issignificantly wider and the wisdom ofchoosing one over the other would reallydepend on the facts and legal position ofeach case. 16. In [2018] 402 ITR 271 (Mad), M/s.Bali Trading Pvt.Ltd., Vs. Principal CIT., the learned Single Judge of this Courtobserved that power under Section 264 of the IT Act, is a widerpower and intended to prevent miscarriage of justice. It isalso observed therein that the powers under Section 264 of theIT Act, is to enable the Commissioner to provide relief to anAssessee, where the law permits the same. 17. In [2016] 386 ITR 643 (Del.), Vijay Gupta Vs. CIT, theDivision Bench of the Delhi High Court, after referring to theCircular No.14/1955 dated 11.04.1955 has observed at ParagraphNos. 22, 35, 36 & 39 as follows:22.CircularNo.14(XL-35):MANU/DTCR/0004/1955 of 1955, dated 11.4.1955,issued by the Central Board of Direct Taxes andrelied upon by the Petitioner reads as under:"Officers of the department must not takeadvantage of ignorance of an assessee as to hisrights. It is one of their duties to assist a 10 17. In [2016] 386 ITR 643 (Del.), Vijay Gupta Vs. CIT, theDivision Bench of the Delhi High Court, after referring to theCircular No.14/1955 dated 11.04.1955 has observed at ParagraphNos. 22, 35, 36 & 39 as follows:22.CircularNo.14(XL-35):MANU/DTCR/0004/1955 of 1955, dated 11.4.1955,issued by the Central Board of Direct Taxes andrelied upon by the Petitioner reads as under:"Officers of the department must not takeadvantage of ignorance of an assessee as to hisrights. It is one of their duties to assist a 10 tax payer in every reasonable way, particularlyin the matter of claiming and securing reliefsand in this regard the officers should take theinitiative in guiding a tax payer whereproceedings or other particulars before themindicate that some refund or relief is due tohim. This attitude would, in the long run,benefit the department, for it would inspireconfidence in him that he may be sure ofgetting a square deal from the department.Although, therefore, the responsibility forclaiming refunds and reliefs rests with theassesses on whom it is imposed by law, officersshould -(a) draw their attention to any refunds orreliefs to which they appear to be clearlyentitled but which they have omitted to claimfor some reason or other;(b) freely advise them when approached by themas to their rights and liabilities and as tothe procedure to be adopted for claimingrefunds and reliefs".35.Fromthevariousjudicialpronouncements, it is settled that the powersconferred under section 264 of the Act are verywide. The Commissioner is bound to apply hismind to the question whether the petitioner wastaxable on that income. Since section 264 usesthe expression "any order", it would imply thatthe section does not limit the power to correcterrors committed by the subordinate authoritiesbut could even be exercised where errors arecommitted by assesses. It would even coversituations where the assessee because of anerror has not put forth a legitimate claim atthe time of filing the return and the error issubsequently discovered and is raised for thefirst time in an application under Section 264. 36. An assessee is liable to tax only uponsuch receipt as can be included in his totalincome and is assessable under the Income-taxAct. There is nothing in S.264, which placesanyrestrictionontheCommissioner'srevisional power to give relief to the assesseein a case where the assessee detracts mistakesbecause of which he was over-assessed after the assessment was completed. Once it is found thatthere was a mistake in making an assessment,the Commissioner had power to correct it unders. 264(1). When the substantive law confers abenefit on the assessee under a statute, itcannot be taken away by the adjudicatoryauthority on mere technicalities. It is settledproposition of law that no tax can be levied orrecovered without authority of law. Article 265of the Constitution of India and section 114 ofthe State Constitution imposes an embargo onimposition and collection of tax if the same iswithout authority of law. 39. When the commissioner was called uponto examine the revision application undersection 264 of the Act, all the relevantmaterial was already available on the record ofthe assessing officer. The commissioner insteadof merely examining whether the intimation wascorrect based on the material then availableshould have examined the material in the lightoftheCircularNo.14(XL-35):MANU/DTCR/0004/1955 of 1955, dated 11.4.1955and Article 265 of the Constitution of India.The commissioner has erred in not doing so andin failing to exercise the jurisdiction vestedin him on mere technical grounds. 39. When the commissioner was called uponto examine the revision application undersection 264 of the Act, all the relevantmaterial was already available on the record ofthe assessing officer. The commissioner insteadof merely examining whether the intimation wascorrect based on the material then availableshould have examined the material in the lightoftheCircularNo.14(XL-35):MANU/DTCR/0004/1955 of 1955, dated 11.4.1955and Article 265 of the Constitution of India.The commissioner has erred in not doing so andin failing to exercise the jurisdiction vestedin him on mere technical grounds. 18. Perusal of the above decisions would show that thepowers conferred on the Commissioner under Section 264 of the ITAct, is not only wider in its scope and also intended for thepurpose of preventing miscarriage of justice and for providingrelief to an Assessee, which he is otherwise entitled to, butfor the order under challenge in revision. 19. No doubt Section 139(5) provides for filing a revisedreturn within one year for correcting any mistake. It is truethat the petitioner has not exercised such option within suchtime. However, the petitioner filed a rectification returnafter receipt of intimation under Section 143(1). It is truethat there is a delay in filing such return. But the saidrectification return was rejected on 24.10.2017 and immediately,within one year, the petitioner approached the Commissionerunder Section 264 of the IT Act, and filed the revision. Sincethe Commissioner is empowered to entertain the revision underSection 264 of the IT Act, against any order other than theorder to which Section 263 applies, the revision filed by the petitioner herein within one year from the date of rejection oftheir rectification return, is certainly maintainable andconsequently, the Commissioner ought to have exercised his powerand considered the relief sought for by the petitioner and passthe order to that effect, more particularly, when he has foundthat the Assessee had committed the error inadvertently and thatthe expenditure claimed by the Assessee under the head "TotalCompensation to Employees" is also supported by the certifiedcopy of "Profit and Loss Account". Therefore, when theCommissioner is approached by the Assessee within one year fromthe date of an adverse order passed against the Assessee, theCommissioner is empowered and entitled to look into thegrievance of the Assessee and pass such order thereonnotwithstanding the fact that the Assessee has not approachedthe Assessing Officer within the time stipulated for filing therevised return. If such technical objection is allowed to standin the way of the Commissioner in exercising hisjurisdiction/power under Section 264 of the IT Act, it wouldcertainly, result in defeating the very purpose and object ofgranting such ample and wider power to the Commissioner underSection 264 of the IT Act. An apparent injustice or miscarriageof justice need to be set right, notwithstanding the technicalobjections, if any. While the substantial justice is the King,technicalities are only his soldiers. Certainly, the King cando no wrong and thus, let the soldiers do not stand in his way. 20. At this juncture, it is very relevant and useful toquote the observation of the Apex Court reported in [2013] 4 SCC97, Laxmibai (Dead) through LRs and another Vs. Bhagwantbuva(Dead) through LRs and others, that when substantial justice andtechnical considerations are pitted against each other, thecause of substantial justice deserves to be preferred. TheApex Court has also gone to the extent of saying that the Courtsmay in the larger interests of administration of justice mayexcuse or overlook a mere irregularity or a trivial breach oflaw for doing real and substantial justice to the parties. Therelevant observation made at Paragraph 49, is extractedhereunder: 20. At this juncture, it is very relevant and useful toquote the observation of the Apex Court reported in [2013] 4 SCC97, Laxmibai (Dead) through LRs and another Vs. Bhagwantbuva(Dead) through LRs and others, that when substantial justice andtechnical considerations are pitted against each other, thecause of substantial justice deserves to be preferred. TheApex Court has also gone to the extent of saying that the Courtsmay in the larger interests of administration of justice mayexcuse or overlook a mere irregularity or a trivial breach oflaw for doing real and substantial justice to the parties. Therelevant observation made at Paragraph 49, is extractedhereunder: "When substantial justice and technicalconsiderations are pitted against eachother, the cause of substantial justicedeserves to be preferred and the Courts mayin the larger interests of administration ofjustice may excuse or overlook a mereirregularity or a trivial breach of law fordoing real and substantial justice to theparties and pass orders which will serve theinterest of justice best." 21. Likewise, the Apex Court in [2013] 4 SCC 186, Union ofIndia and others Vs. Ex-Gnr Ajeet Singh, has observed atParagraph Nos. 24 & 26 as follows: 24. The expression "failure of justice"would appear, sometimes, as an etymologicalchameleon. The Court has to examine whetherthere is really a failure of justice orwhether it is only a camouflage. Justice isa virtue which transcends all barriers.Neither the rules of procedure, nortechnicalities of law can stand in its way.Even the law bends before justice. The orderof the court should not be prejudicial toanyone. Justice means justice between boththe parties.26. Justice is the virtue by which theSociety/Court/Tribunal gives a man his due,opposed to injury or wrong. Justice is anact of rendering what is right and equitabletowards one who has suffered a wrong.Therefore, while tempering justice withmercy, the Court must be very conscious,that it has to do justice in exactconformity with some obligatory law, for thereason that human actions are found to bejust or unjust on the basis of whether thesame are in conformity with, or inopposition to, the law. 22. It is contended by the learned counsel appearing forthe Revenue by that exercise of power and granting the relief tothe Assessee under Section 264 of Income Tax Act, 1961, issubject to the provision of the Income Tax, Act and therefore,the Assessee herein, having not filed revised return within thetime stipulated under Section 139(5) of the IT Act, is notentitled to the relief even under Section 264 of the IT Act. 23. I am unable to appreciate the above contention, as itappears that the Revenue by making such contention, is sought tojustify the collection of excess tax over and above the taxpayable by the Assessee, even though they admit that only due toinadvertent mistake, a wrong entry was made by the Assessee withlessor figure of the relevant expenses than the actual expensesmet out. At this juncture, it is relevant to note that Article265 of the Constitution of India specifically states that no tax 14 shall be levied or collected except by authority of law.Therefore, both the levy and collection must be done with theauthority of law, and if any levy and collection, later arefound to be wrong and without authority of law, certainly, suchlevy and collection cannot withstand the scrutiny of the aboveconstitutional provision and thus, such levy and collectionwould amount in violation of Article 265 of the Constitution ofIndia. 24. Therefore, it is apparent on the facts andcircumstances of the present case, that a mere typographicalerror committed by the Assessee cannot cost them payment ofexcess tax as collected by the Revenue. Certainly, the denialfor repayment of such excess collection would amount to greatinjustice to the Assessee. 14 shall be levied or collected except by authority of law.Therefore, both the levy and collection must be done with theauthority of law, and if any levy and collection, later arefound to be wrong and without authority of law, certainly, suchlevy and collection cannot withstand the scrutiny of the aboveconstitutional provision and thus, such levy and collectionwould amount in violation of Article 265 of the Constitution ofIndia. 24. Therefore, it is apparent on the facts andcircumstances of the present case, that a mere typographicalerror committed by the Assessee cannot cost them payment ofexcess tax as collected by the Revenue. Certainly, the denialfor repayment of such excess collection would amount to greatinjustice to the Assessee. 25. Even though the Statute prescribes a time limit forgetting the relief before the Assessing Officer by way of filinga revised return, in my considered view, there is no embargo onthe Commissioner to exercise his power and grant the reliefunder Section 264 of the IT Act. In other words, for grantingthe relief to an Assessee, which the Commissioner finds that theAssessee is entitled to otherwise, no time restriction isprovided under Section 264 of the IT Act, if such revisionaljurisdiction is invoked by the Assessee by making an applicationunder Section 264 of the IT Act. However, the Commissioner isnot entitled to revise any order under Section 264 on his ownmotion, if the order has been made more than an year previously.Thus, it is manifest that only suo-motu power of theCommissioner under Section 264 of the IT Act, is restrictedagainst an order passed within one year, whereas no suchrestriction is imposed on the Commissioner to exercise his powerin respect of an order, which has been passed more than on year,if such revisional power is sought to be invoked at the instanceof the Assessee by making an application under Section 264 ofthe IT Act. 26. Considering the above stated facts and circumstances,this Court is of the firm view that the order of the respondentimpugned in this writ petition cannot be sustained.Accordingly, this Writ Petition is allowed and the impugnedorder is set aside. Consequently, the matter is remitted backto the respondent for considering the claim of the petitionerand pass appropriate orders in the light of the observations andfindings rendered supra. The respondent shall, accordingly, pass such fresh order within a period of six weeks from the dateof receipt of a copy of this order. No costs. Sd/- Assistant Registrar(CJ conf) //True Copy// Sub Assistant Registrar mkTo The Principal Commissioner of Income Tax-163, Race CourseCoimbatore 641 018. +1cc to Mr.T.N.Seetharaman, Advocate SR.88359/19+1cc to Mr.A.P.Srinivas, Advocate SR.88810/19 W.P.No.18185 of 2019 CB(15/11/2019)VGI(CO) 16