Wp(C)/17701/2007 Of M/S. Kerala Autombiles Ltd v. Asst.commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 26TH MAY 2011 / 5TH JYAISHTA 1933 WP(C).No. 17701 of 2007(G) -------------------------- PETITIONER(S): --------------- M/S.KERALA AUTOMOBILES LIMITED, ARALUMOODU P.O., THIRUVANANTHAPURAM 695 123, REPRESENTED BY ITS MANAGING DIRECTOR, MR.JACOB JOSEPH. BY ADV. SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.ANIL D. NAIR RESPONDENT(S): --------------- 1. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1(1), THIRUVANANTHAPURAM. 2. COMMISSIONER OF INCOME TAX, THIRUVANANTHAPURAM. SRI.GEORGE K. GEORGE, SC FOR IT THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 17701/2007 PETITIONER(S)' EXHIBITS APPENDIX P1.COPY OF THE REVISION PETITION. P2.COPY OF THE ORDER DTD.23.3.07 BY R2. P3.COPY OF THE ORDER DTD.6.12.05BY R2. sdk+ ///True copy/// P.A. to Judge ================== W.P.(C).No. 17701 of 2007 ================== Dated this the 26[th] day of May, 2011 J U D G M E N T The petitioner is a company registered under the Companies Actowned by the Government of India. The company filed a revisionpetition under Section 264 of the Income Tax Act, Ext.P1, before the2[nd] respondent in respect of acceptability of a revised return filedbelatedly. In the revision petition, the petitioner requested forcondonation of delay of more than six years in filing the revisionpetition. By Ext.P2 order, the Commissioner refused to condone thedelay and, consequently, the prayer for condonation of delay as well asthe revision petition was dismissed. The petitioner is challenging thatorder in this writ petition. 2.According to the petitioner, the 2[nd] respondent ought tohave considered the revision petition on merits, after condoning thedelay, insofar as the petitioner had sufficiently explained the delaysatisfactorily in the revision petition itself. The petitioner seeks thefollowing reliefs; “(i)To call for the records leading to issuance of Ext.P2 order andquash the same by issuing a writ of certiorari; quash the same by issuing a writ of certiorari; (ii)To grant a stay of all further proceedings pursuant to Ext.P2order pending disposal of the Writ Petition.”order pending disposal of the Writ Petition.” 3.The learned standing counsel appearing for the Income Tax Department supports the impugned order, although no counteraffidavit has been filed. 4.In the course of the arguments, this Court raised a doubtas to whether the revision petition itself is maintainable at all, insofaras under Section 264, revision is maintainable by the Commissioneragainst an order passed by an authority subordinate to him. No orderpassed by any authority subordinate to the 2[nd] respondent-Commissioner is the subject matter of Ext.P1 revision. On thisquestion, elaborate arguments were advanced by the counsel for thepetitioner. He would contend that an order need not necessarily be anorder in writing. It is sufficient, if a subordinate authority of theCommissioner has expressed any binding opinion prejudicial to theinterests of the assessee in any proceedings. According to him, for asubsequent assessment year, the Commissioner passed Ext.P3 orderof assessment, in which, he had specifically stated that for the yearrelating to the assessment year, in respect of which, Ext.P1 revisionpetition was filed, the revised return filed by the petitioner was filedthe beyond the time prescribed and has not been accepted by theassessing authority. He submits that from that decision, the assesseecame to know that his revised return has not been accepted since itwas filed belatedly. Therefore, the petitioner filed a revision petitionagainst that expression of an opinion prejudicial to them by the w.p.c.17701/07 w.p.c.17701/07 assessing authority, which was referred to in Ext.P3 order. Insofar asthat decision was not at any time communicated to the petitioner, thepetitioner was perfectly justified in filing a revision under Section 264of the Act against that decision of the assessing authority, is thecontention raised. 5.The learned standing counsel for the Income TaxDepartment, despite the fact that Ext.P2 order has been passeddismissing the application for condonation of delay in filing therevision, now submits that it was a mistake committed by theCommissioner and the Commissioner should not have entertained therevision at all, insofar as the revision is not directed against anyspecific order of any authority subordinate to the 2[nd] respondent-Commissioner and, therefore, the Commissioner ought to haverejected the revision as not maintainable. 6.I have considered the rival contentions in detail. 7.It appears that the assessee originally filed a return for theassessment year 1997-98 on 1.12.1997. He filed revised return on30.3.1997 and still another revised return was filed on 31.12.1999.The revised return filed on 31.12.1999 was admittedly filed beyond theperiod prescribed under the Act and Rules. Now the subject matter ofExt.P1 revision is the refusal to accept the revised return. The revisedreturn dated 31.12.1999 was filed beyond the period prescribed by the w.p.c.17701/07 statute. Therefore, the question of either accepting or rejecting thesame does not arise unless the assessee moved the assessingauthority for some order in respect of thereof. Insofar as there is noorder either accepting or rejecting that revised return, all what theassessee could have done is to challenge the assessment for theassessment year in an appeal as provided under the Act. In fact inExt.P1, the petitioner does not seek any relief against any orderwhatsoever of any authority subordinate to the 2[nd] respondentCommissioner. In fact, the only remedy sought for in the same isregarding the income assessed for the relevant assessment year,which is a question, which the assessee could have raised in an appeal against the assessment itself. 8.Section 264 of the Income Tax Act reads thus; “264. (1) In the case of any order other than an order to which section263 applies passed by an authority subordinate to him, theCommissioner may, either of his own motion or on an application bythe assessee for revision, call for the record of any proceeding underthis Act in which any such order has been passed and may make suchinquiry or cause such inquiry to be made and, subject to the provisionsof this Act, may pass such order thereon, not being an order prejudicialto the assessee, as he thinks fit. (2)The Commissioner shall not of his own motion revise any orderunder this section if the order has been made more than one yearpreviously. (3)In the case of an application for revision under this section bythe assessee, the application must be made within one year from thedate on which the order in question was communicated to him or thedate on which he otherwise came to know of it, whichever is earlier. Provided that the Commissioner may, if he is satisfied that theassessee was prevented by sufficient cause from making theapplication within that period, admit an application made after the w.p.c.17701/07 expiry of that period. (4)The Commissioner shall not revise any order under this sectionin the following cases- (2)The Commissioner shall not of his own motion revise any orderunder this section if the order has been made more than one yearpreviously. (3)In the case of an application for revision under this section bythe assessee, the application must be made within one year from thedate on which the order in question was communicated to him or thedate on which he otherwise came to know of it, whichever is earlier. Provided that the Commissioner may, if he is satisfied that theassessee was prevented by sufficient cause from making theapplication within that period, admit an application made after the w.p.c.17701/07 expiry of that period. (4)The Commissioner shall not revise any order under this sectionin the following cases- (a)where an appeal against the order lies to the DeputyCommissioner (Appeals) or to the Commissioner (Appeals) or tothe Appellate Tribunal but has not been made and the timewithin which such appeal may be made has not expired, or, inthe case of an appeal to the Commissioner (Appeals) or to theAppellate Tribunal, the assessee has not waived his right ofappeal; orCommissioner (Appeals) or to the Commissioner (Appeals) or tothe Appellate Tribunal but has not been made and the timewithin which such appeal may be made has not expired, or, inthe case of an appeal to the Commissioner (Appeals) or to theAppellate Tribunal, the assessee has not waived his right ofappeal; or (b)where the order is pending on an appeal before the DeputyCommissioner (Appeals);Commissioner (Appeals); (c)where the order has been made the subject of an appeal to theCommissioner (Appeals) or to the Appellate Tribunal.Commissioner (Appeals) or to the Appellate Tribunal. (5)Every application by an assessee for revision under this sectionshall be accompanied by a fee of five hundred rupees. (6)On every application by an assessee for revision under this sub-section made on or after the 1[st] day of October, 1998, an order shall bepassed within one year from the end of the financial year in which suchapplication is made by the assessee for revision.” First of all, the revision should be against an order by an authority subordinate to the Commissioner. Secondly, the revision should havebeen filed within one year from the date on which the order in questionwas communicated to the assessee or the date on which the assesseeotherwise came to know of the same, whichever is earlier. Therefore,for calculating the limitation under the said Section, the starting pointis either the date of order or the date on which that order wascommunicated to the assessee or the date on which the assesseecame to know of the order, if it has not been communicated to him. Inthe present case, insofar as there is no order whatsoever, without suchan order, no revision is maintainable. Consequently, I am of opinion w.p.c.17701/07 that Ext.P1 revision itself is not maintainable. Therefore, I need notconsider the validity of Ext.P2 order passed by the 2[nd] respondentrefusing to condone the delay in filing the same. Accordingly, the writpetition is dismissed. However, this will not stand in the way of thepetitioner seeking appropriate other remedies under law against theassessment, which the petitioner is entitled to, otherwise. sdk+ Sd/- S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge