TaxTMI 
TaxTMI 
TaxTMI 
2014 (1) TMI 492
X X X X Extracts X X X X
X X X X Extracts X X X X
....tal gains from sale of agricultural land, but inadvertently the petitioner did not claim exemption from capital gains, admittedly, available under Section 54-B of the Act. The error was occasioned as the petitioner's son was seriously ill and hospitalised and the petitioner's mother suffered a paralytic stroke. The petitioner accordingly filed a petition under Section 264 of the Act, before the Commissioner of Income Tax, Jalandhar, praying that assessment order dated 09.03.1994 be revised and exemption be granted under Section 54-B of the Act. The petition was dismissed on the ground that the petitioner did not claim exemption before the Assessing Officer, whether in the original or in the revised return. The fact that the petitioner did not raise a plea before the Assessing Officer is irrelevant as Section 264 of the Act confers jurisdiction to grant relief where on account of a bonafide error, whether by the assessee or the Assessing Officer, the assessment order is contrary to an available exemption. The revenue does not deny that the petitioner was entitled to exemption under Section 54-B of the Act. The Commissioner should have, therefore, allowed the petition. Counsel for th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....may, either of his own motion or on an application by the assessee for revision, call for the record of any proceeding under this Act in which any such order has been passed and may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act, may pass such order thereon, not being an order prejudicial to the assessee, as he thinks fit. (2) The Commissioner shall not of his own motion revise any order under this section if the order has been made more than one year previously. (3) In the case of an application for revision under this section by the assessee, the application must be made within one year from the date on which the order in question was communicated to him or the date on which he otherwise came to know of it, whichever is earlier. Provided that the Commissioner may, if he is satisfied that the assessee was prevented by sufficient cause15 from making the application within that period, admit an application made after the expiry of that period. (4) The Commissioner shall not revise any order under thi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dings or order and after making "such enquiry" pass "such order" in accordance with provisions of the Act. The expressions "such enquiry" and "such order" are wide enough, to include a situation where but for a bonafide error, committed by an assessee, he would not be liable to pay tax. The prohibition, against raising a plea that has not been raised before the Assessing Officer, invoked by the revenue, applies to appeals and not to proceedings under Section 264 of the Act. If such a prohibition were to be read into Section 264 of the Act, it would obliterate the difference between an appeal and power conferred by Section 264 of the Act. Section 264 of the Act, was enacted, to ensure that proceeding before and orders passed by Assessing Officers are passed in accordance with provisions of the Act.. To punish an assessee with payment of tax, where admittedly such a tax is not payable, would, in essence, lead to affirmation of an order that is admittedly contrary to provisions of the Act and thus without authority of law. At this stage, it would be appropriate to refer to a judgment of the High Court of Jammu and Kashmir at Jammu in Sneh Lata Jain v. Commissioner of Income Tax and A....
X X X X Extracts X X X X
X X X X Extracts X X X X
....st time, in a petition filed under Section 264 of the Act. On that aspect of the question, we have no doubt in our mind that the Commissioner has jurisdiction to entertain a revision petition under Section 264 of the Act." To similar effect, are judgments of the Allahabad High Court in Rashtriya Vikas Ltd. v. CIT, (1992) 196 ITR 694(AII), Gujarat High Court in C.Parikh & Co. v. Commissioner of Income Tax, (1980) 122 ITR 610(Guj), Ramdev Exports v. Commissioner of Income Tax, (2001) 251 ITR 873(Guj) and Digvijay Cement Company Limited v. Commissioner of Income Tax and another, 1994 ITR, 797. We, however, express our respectful disagreement with the judgment of the Jammu & Kahsmir High Court in M.Qasim Brothers v. Commissioner of Income Tax and another. Thus, we hold that a bonafide error committed by an assessee in claiming an admissible exemption, during assessment proceeding, would not prohibit the assessee from approaching the Commissioner or the Commissioner from considering a petition under Section 264 of the Act, provided other conditions contained in Section 264 are satisfied. Admittedly, the petitioner sold and purchased agricultural land in the previous year relevant to t....