Paragraph 14 Of The Petition As Recorded Above, Has Not Been Denied.therefore, Without Going Into The Merits Of The Matter, We Hereby Quashand Set Aside The Imp v. Cit,1

Digitallysigned byMEERAMEERAMAHESHMAHESHJADHAVJADHAVDate:2023.10.2611:18:18+0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTION WRIT PETITION NO.764 OF 2022 Atlas Copco India Ltd. VersusDeputy Commissioner of Income TaxCircle-8, Mumbai & Ors. ...Petitioner ...Respondents ---- Mr. J. D. Mistri, Senior Advocate a/w Mr. Nilesh Joshi & Mr. Sameer Dalal for Petitioner.Mr. Suresh Kumar for Respondents. ---- CORAM : K. R. SHRIRAM & NEELA GOKHALE, JJ.DATED : 23[rd] OCTOBER 2023 NEELA GOKHALE, JJ. P.C. : 1Petition is impugning an order dated 30[th] March 2021 passed byrespondent no.2 rejecting petitioner’s application under Section 264 of theIncome Tax Act 1961 (the Act). Though, various grounds have been raised,the short point is petitioner’s application under Section 264 of the Act wasrejected without giving petitioner a personal hearing. 2Indisputably, there was a delay in filing the application under Section264 of the Act. Petitioner had filed an application for condonation of delayas well. 3Petitioner received a notice dated 10[th] February 2021 by which,petitioner was informed that the hearing in the matter was fixed on 25[th]February 2021 at 11.00 a.m. and petitioner was requested to join in personor through an authorised representative. Petitioner was also asked to submit the written submissions, if so desired. Petitioner filed the writtensubmissions as well. 4On 25[th] February 2021, when petitioner’s representative appearedbefore respondent no.2, he was informed that the first part of the noticeinforming petitioner about the personal hearing and the date and time hasbeen cancelled in the copy of the notice available in the record torespondent no.2, meaning thereby opportunity of personal hearing was notto be allowed. Copy of the notice where the first part stood cancelled wasphysically served on petitioner’s representative. Respondent no.2 did notgive a personal hearing but rather asked petitioner’s representative to setout its case to his subordinate officer, i.e., ITO (HQ). It is alleged in thepetition that ITO (HQ), in a perfunctory manner asked petitioner’srepresentative to briefly touch on the case on merits. The entire discussionin the course of hearing before the ITO (HQ) centered around the merits ofthe claims. No indication was ever given with respect of question ofrejecting the revision application as barred by limitation. 5Thereafter, the impugned order dated 30[th] March 2021 came to bepassed, in which, application under Section 264 has been dismissed only onthe ground of delay. Mr. Mistri states that, therefore, the order was bad, inas much as, it is in breach of the principles of natural justice. 6No reply has been filed though, petition was served in 2021.Therefore, we will proceed on the basis that the averments contained in paragraph 14 of the petition as recorded above, has not been denied.Therefore, without going into the merits of the matter, we hereby quashand set aside the impugned order dated 30[th] March 2021. 7Respondent no.2 may be advised that this court has time and againheld that Section 264 confers wide jurisdiction on the Commissioner. Theproceedings under Section 264 of the Act are intended to meet a situationfaced by an aggrieved assessee, who is unable to approach the AppellateAuthorities for relief and has no other alternate remedy available under theAct. The Commissioner is bound to apply his mind to the question whetherpetitioner was taxable on that income and his powers are not limited tocorrect the error committed by the subordinate authorities but could evenbe exercised where errors are committed by assessee. It would even coversituation where assessee because of an error has not put forth legitimateclaim at the time of filing the return and the error is subsequentlydiscovered and is raised for the first time in an application under Section264 of the Act as held in Smita Rohit Gupta Vs. CIT,1 8The powers conferred under Section 264 of the Act being wide,respondent no.2 should have considered the application under Section 264of the Act on merits. In any event, respondent no.2 should have given apersonal hearing to petitioner to explain the delay and not direct petitionerto make its representation before the ITO(HQ). The ITO(HQ) was not theadjudicating authority before whom, the application under Section 264 of 1. Judgment dated 28[th] August 2023 in Writ Petition No.6964 of 2022 the Act had been filed. 9We have no hesitation in quashing and setting aside the impugnedorder dated 30[th] March 2021 and remand the matter to respondent no.2for denovo consideration. Respondent no.2 shall dispose the application onmerits. Before passing any order, personal hearing shall be given, noticewhereof shall be given atleast five working days in advance. The order to bepassed shall be a reasoned order dealing with all submissions of assessee.The application under Section 264 of the Act shall be disposed by 31[st]January 2024. 10Petition disposed. (NEELA GOKHALE, J.) (K. R. SHRIRAM, J.)