Sham Anand Salunkhe v. The Principal Commissioner Of Income Tax-2

1/6 1-wp.170.19 IN THE HIGH COURT OF JUDICATURE AT BOMBAYAPPELLATE CIVIL JURISDICTION WRIT PETITION NO.170 OF 2019 Sham Anand Salunkhe ... Petitioner vs 1. The Principal Commissioner of Income Tax-2 2. The Assistant Commissioner of Income Tax-4 3. Union of India … Respondents ------ Mr.Mandar Vaidya for PetitionerMr.Suresh Kumar for Respondent nos.1 & 2. CORAM : AKIL KURESHI & M.S.SANKLECHA, JJDATE : 1st MARCH, 2019 P.C 1.The petitioner has challenged the order dated 15.5.2018passed by the Commissioner of Income Tax rejecting the petitioner'srevision application on the ground of delay. Brief facts are as under : 2. The petitioner is an individual. He was member of apartnership firm from which, he retired on 23.5.2005. The petitioner filedhis return of income for Assessment Year 2007-2008 in which he had included a sum of Rs.51.96 lacs (rounded off) which was received by himon retirement from the said partnership firm towards his share ingoodwill. Such return was accepted by the Assessing Officer under section143 (1) of the Income Tax Act, 1961 (for short, 'the Act') without scrutinyon 24.3.2009. 3. The petitioner filed a revision application before theCommissioner of Income Tax on 6.9.2017 against the said order ofassessment, and requested that the amount of Rs.51.96 lacs be deletedfrom computation of his taxable income for Assessment Year 2007-08. Insuch revision petition, the petitioner had stated that intimation undersection 143 (1) of the Act, was not served on him and that therefore, therewas no delay on his part in filing the revision application. However, ifthe Commissioner of Income Tax was of the opinion that the revisionapplication was beyond the period of limitation, the same may becondoned. The petitioner's assertions in the revision application in thisrespect may be noted. “11. It is further brought to the kind notice of your honour that theapplicant/assessee applied on 01-06-2017 for issuance of the certified copyof the intimation for the Assessment Year 2007-08. It may kindly beappreciated that the applicant/assessee was not served with theintimation/demand under sec.143 (1) of the Income Tax Act and realisedfor the first time on 12[th] and 13[th] May 2017, on receipt of notice underapplicant/assessee applied on 01-06-2017 for issuance of the certified copyof the intimation for the Assessment Year 2007-08. It may kindly beappreciated that the applicant/assessee was not served with theintimation/demand under sec.143 (1) of the Income Tax Act and realisedfor the first time on 12[th] and 13[th] May 2017, on receipt of notice under sec.245 of Income Tax Act, regarding incorrect acceptance of the income-taxreturn filed by him for the Assessment Year 2007-08. It is submitted that,therefore, limitation for filing present application/representation runs fromthe date of his awareness of the intimation i.e. from 12[th] May 2017, andtherefore present application/representation is within limitation.” 4. The Commissioner of Income tax dismissed the revisionpetition by the impugned order, on the ground that the same was filedmuch beyond the period of limitation prescribed. The concludingobservations reads thus : “4. Your petition u/s 264 is carefully considered. As per the provision ofSec.264 the application for revision must be made within one year from thedate on which the order in question was communicated to the assessee, orthe date on which he otherwise came to know of it, whichever is earlier. Asper our records, in your case intimation u/s 143 (1) was served on29/03/2009, a copy of which is enclosed to this letter. Therefore, as RevisionPetition is not filed in time, the same is not maintainable under provisions ofSec.264. Therefore, the Revision Petition is disposed of as dismissed.” “4. Your petition u/s 264 is carefully considered. As per the provision ofSec.264 the application for revision must be made within one year from thedate on which the order in question was communicated to the assessee, orthe date on which he otherwise came to know of it, whichever is earlier. Asper our records, in your case intimation u/s 143 (1) was served on29/03/2009, a copy of which is enclosed to this letter. Therefore, as RevisionPetition is not filed in time, the same is not maintainable under provisions ofSec.264. Therefore, the Revision Petition is disposed of as dismissed.” 5. Learned counsel for the petitioner submitted that intimationunder section 143 (1) of the Act, was never served on the petitioner andthat therefore, the Commissioner of Income Tax was not correct inholding, that the revision application was filed beyond the period oflimitation. He submitted that the petitioner had offered the said incometo tax erroneously and the Commissioner of Income Tax therefore, inexercise of his revisional jurisdiction, should have granted the reliefs as 1-wp.170.19 6. On the other hand, Mr.Suresh Kumar learned counsel for therevenue, opposed the application contending that intimation under section143 (1) was duly served on the petitioner and in any case, the petitionercould not have waited for several years for filing the revision application.6.1. In the present case, we are prepared to proceed on the basis thatintimation under section 143 (1) of the Act, was not served on thepetitioner. We also recognize the right of the petitioner, to persuade theCommissioner of Income Tax, to delete the income declared in the return,if it would otherwise, not taxable. 7. The question in the present petition, is one of limitation infiling the revision petition before the Commissioner of Income Tax. Sub-section (3) of section 264 of the Act, envisages the period of limitation ofone year for filing a revision application from the date on which, the orderunder revision is communicated to the applicant or which he otherwisecame to know of it, or whichever is earlier. This period of limitation thus,commences not from the date of the order but, from the date of itscommunication or knowledge whichever is earlier. RNG 5/61-wp.170.19 8. In the present case, it is not disputed that once the petitionerfiled the return of income, the scrutiny assessment thereof, would becometime-barred upon expiry of the period prescribed under the statute. Thiswould happen sometime in the year 2010. 9. In the circumstances, the knowledge that the departmentdoes not propose to take the return of income for scrutiny assessment, canbe attributed to the petitioner. If the petitioner had any dispute with thedepartment accepting his return as per declaration made in it, thepetitioner had to file an appropriate revision application before theCommissioner of Income Tax, within a period of one year thereafter, andat any rate, explaining the delay caused in filing such a revisionapplication beyond the said period. In the present case, the revisionapplication was filed seven years later. By no stretch of imagination,such long period can be ignored. The petitioner simply, cannot takeshelter of non-communication of the intimation or acceptance undersection 143 (1) of the Act. If, the petitioner wanted to dispute his owndeclaration in the return, he had to take appropriate steps before theCommissioner of Income Tax within the period of limitation prescribedwhich in the present case, is not done. RNG 6/6 1-wp.170.19 10. In the result, petition is dismissed. (M.S.SANKLECHA, J) (AKIL KURESHI, J)