TaxTMI 
TaxTMI 
2016 (9) TMI 608
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....same was debited to Profit and Loss account and the business profit was accordingly computed. According to the petitioner, however, while computing the profit and loss of the business, due to misunderstanding, these amounts totalling to Rs. 1.87 crores (rounded off) were added back while computing total income. According to the petitioner, thus the returned income of Rs. 3.31 crores (rounded off) included this sum of Rs. 1.87 crores erroneously added. In the statement of income accompanying the return for the assessment year 2003-2004, the petitioner had put the following note : "During the year under review the assessee company has made provision for commission for performance guarantee given to suppliers on behalf of the company of Rs. 69,50,000/and has also provided for commission on purchase aggregating to Rs. 1.18,21,456/. The same has been disallowed and will be claimed when actual payment with necessary documents will be made as the company is still in the process of negotiating the same." 3. Case of the petitioner further is that these amounts were payable to one BG Energy Holdings Ltd. in accordance with the agreement between the parties and the expenditure was thus ....
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.... accordingly allowed. The impugned order dated 03.12.2009 (AnnexureC) made by respondent Commissioner is hereby quashed and set aside. The revision application bearing File No.: CITII/ Jud/Tech/264/02/200910 is restored to the file of the Commissioner. The Commissioner shall decide the same afresh in accordance with law after giving the parties an opportunity of hearing. If the Commissioner is of the view that the application under section 264 of the Act is barred on the ground of delay, the Commissioner shall decide the same as a preliminary issue after putting the petitioner to notice and giving it an opportunity of hearing. Rule is made absolute accordingly." 7. The Commissioner thereupon issued a show cause notice dated 6.10.2010 in which he pointed out to the petitioner that the refund order dated 31.3.2005 was dispatched along with intimation under section 143(1) of the Act as was evident from the issue stamp on the office copy of the intimation. Refund order of Rs. 32,710/was also duly credited in the bank account of assessee on 11.5.2005. It would therefore, appear that the petitioner had received the refund order and the intimation prior to the said date. The revision p....
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....n under section 264 of the Act against intimation in respect of assessment year 2003-2004 is not maintainable but the rights already vested for earlier years would not be taken away by amendment. 11. It is this order, the petitioner has challenged in the present petition. 12. Appearing for the petitioner, learned counsel Shri J.P. Shah raised the following contentions : 07.09.2016 1) The petitioner had sufficiently explained the delay in filing the revision petition. Question of delay should have been considered liberally. The Commissioner ought to have appreciated that the petitioner had not received the intimation from the Assessing Officer of acceptance of the return. The Commissioner committed a serious error in holding that the petitioner failed to show sufficient cause in late filing of the revision petition. In this context, the counsel relied on the decision of the Supreme Court in case of N. Balakrishnan v. M. Krishnamurthy reported (1998) 7 Supreme Court Cases 123. 2) Counsel further submitted that against the order accepting the return under section 143(1) of the Act, revision was maintainable before the Commissioner under section 264 of the Act. Even acce....
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....order and the intimation under section 143(1) of the Act. The revision petition was filed several years later which was clearly barred by limitation. The explanation offered for such delay was not satisfactory. The Commissioner therefore, correctly dismissed the revision petition on the ground of limitation. 2) The revision petition was otherwise also not maintainable. The intimation under section 143(1) of the Act is neither an order of assessment nor an order which in terms of section 264 of the Act is revisable. It is a mere administrative action of intimating to an assessee that his return is accepted. This would be clear from the legislative changes made in section 143(1) of the Act with effect from 1.6.1999 when the explanation was dropped. She submitted that prior to 1.6.1999 under section 143(1) of the Act, the Assessing Officer had the power to make prima facie adjustments. Due to this, the intimation under section 143(1) of the Act was deemed to be an order of assessment for the purpose of section 264 of the Act. In support of this contention, counsel relied on the following decisions : 1) Decision of Kerala High Court in case of Commissioner of Incometax v. K.V. Ma....
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....t the petitioner to notice and then decide the question of limitation. Thereupon, the petitioner elaborated the grounds of delay contending interalia that the intimation under section 143(1) of the Act dated 31.3.2005 was served on the petitioner for the first time on 27.3.2009. Prior to such date, the company was not served with any such intimation. Along with refund order, no such intimation was attached. Thus there is no delay in filing the revision petition. Even if it is taken that such order of intimation was served on or before 11.5.2005, according to the petitioner, late filing of the revision petition was due to good and sufficient cause. The Commissioner has power to condone such delay. 18. From the above it can be seen that after the petitioner received the refund order which obviously would have been done before 11.5.2005, since the petitioner had credited the refund amount in its account on such date, the first attempt to seek revision of such order was made only on 29.12.2008. Section 264 of the Act pertains to the Commissioner's power of revision. Under subsection( 1) of section 264, the Commissioner would have the power to revise any order other than an order....
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....on petition earlier, there is no explanation at all. The petitioner merely referred to the power of the Commissioner to condone the delay for good and sufficient cause being shown, but did not elaborate, in the present case, what such good and sufficient cause was. The Commissioner in our opinion therefore, committed no error in holding that the petitioner had failed to show sufficient cause for condoning the delay. Question (2) 20. Regarding question no.2, this issue pertains to maintainability of the revision petition. As noted, under subsection( 1) of section 264, the Commissioner has the power to revise any order other than an order to which section 263 of the Act applies, passed by an authority subordinate to him by calling for record of the proceedings and make such inquiry or cause such inquiry to be made and subject to the provisions of the Act, pass such order, not being an order prejudicial to the assessee, as he thinks fit. It was undoubtedly true that reference under subsection( 1) of section 264 is to any order passed by an authority subordinate to the Commissioner. Thus clearly the revisional power of the Commissioner under subsection( 1) of section 263 are not ....
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.... that an intimation sent to the assessee under subsection( 1) would be deemed to be an order for the purposes of section 264 with effect from 1.6.1999. Such explanation has been deleted giving a clear indication that such deeming fiction would no longer apply. In other words, as long as the Assessing Officer had the power to make prima facie adjustments while processing the returns of the assessee under section 143(1) of the Act, by a deeming fiction, it was considered as an order for the purpose of section 264 of the Act and, therefore, revisable. Once with amendment of section 143, such powers were rescinded, it was thereafter, no longer necessary to provide for any refund against a mere intimation under section 143(1) and a corresponding change was therefore, made by deleting the explanation and withdrawing the deeming fiction. We therefore, accept the view of the Commissioner that against the intimation under section 143(1) of the Act, the revision petition was not maintainable. 26. However, before concluding this issue, we must refer to the decisions cited by the counsel for the petitioner. In case of C. Parikh & Co. (supra), facts were that for the assessment year 1966-196....
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.... case of C. Parikh & Co. (supra) and other similar decisions, held that the Commissioner ought to have examined the claim of the petitioner, even though no such claim was made before the Assessing Officer. In this case, once again the question of maintainability of a revision petition against a mere intimation under section 143(1) of the Act, did not arise. As noted, for the assessment year 1996-1997, the assessment was framed after scrutiny. For the year 1997-1998, explanation to section 143 would apply, making even the intimation deemed to be an order for the purpose of section 264 of the Act. 28. In case of Assam Roofing Ltd. (supra), the Division Bench of Gauhati High Court for the return of assessment year 2002-2003 did hold that even an intimation under section 143(1) of the Act shall be subject to revision under section 264. To come to such a conclusion, however, the Court relied solely upon the decision of this Court in case of C. Parikh & Co. (supra) which, as noted, pertained to a question whether a claim not made by the assessee in the return and not processed before the Assessing Officer, could be granted in a revision petition by the Commissioner. The decision of th....
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.... there has been an excess payment of tax, the Assessing Officer is obliged to refund the same. Such an argument would ignore the provision under section 242 of the Act which provides that in a claim under Chapter XIX pertaining to refund in which section 237 is also included, it shall not be open for the assessee to question the correctness of any assessment or other matter decided which has become final and conclusive or ask for a review of the same and the assessee shall not be entitled to any relief on such claim, except refund of tax wrongly paid or paid in excess. Against the return filed by an assessee, before 1.6.1999, a revision petition was maintainable. If a claim which was not made, had to be raised, it was possible for the assessee to file a revised return. We are prepared to accept that even during the assessment, if the assessee points out that there is palpable error in the petitioner's own assessment of his tax liability, the Assessing Officer is duty bound to address to such an issue and cannot take a technical stand. However, once the return is filed, which is processed with or without scrutiny, any claim for refund can arise only if such order of assessment i....