TaxTMI 
TaxTMI 
2022 (9) TMI 1381
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....on), Hyderabad dated 30.03.2022 as being unjust, invalid and against the settled principles of law and principles of natural justice, consequently set aside the order of the first respondent, CIT (Exemption), Hyderabad dated 30.03.2022, thereby directing the first respondent to consider the Revision Petition of the petitioner under Section 263 of the Income Tax Act, 1961 on merits, by treating the Appeal filed by the petitioner before the second respondent as withdrawn; and (b) to direct the second respondent to decide the Appeal filed by the petitioner by considering the application for withdrawal of petitioner and to dispose of the appeal expeditiously." 2. The facts, in issue, are that the petitioner herein is a Society under....
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....issioner of Income Tax vide Order dated 30.03.2022 rejected the revision filed on the ground that the appeal filed by the assessee against the order of Assessing Officer is pending before the NFAC and that an order cannot be revised pending appeal. At that stage, the present writ petition is filed, seeking the above two reliefs. 3. A counter came to be filed by the respondents disputing the averments made in the affidavit filed, which are not specifically admitted. It is stated in the counter that when the appeal filed by the petitioner, which is pending disposal before the NFAC, New Delhi, the Commissioner of Income Tax has no jurisdiction to consider the petition filed under Section 264 of the I.T. Act. It is said that the remedy avail....
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.... be just and proper to refer to Section 264 (4) of the I.T. Act, which is as under:- "The [Principal [Chief Commissioner or Chief Commissioner or Principal] Commissioner or] Commissioner shall not revise any order under this section in the following cases:- (a) Where an appeal against the order lies to the [Deputy Commissioner (Appeals) [or to the Commissioner (Appeals) or to the Appellate Tribunal but has not been made and the time within which such appeal may be made has not expired, or in the case of an appeal [to the Commissioner (Appeals) or] to the Appellate Tribunal, the assessee has not waived his right of appeal; or (b) Where the order is pending on an appeal before the [Deputy Commissioner (Appeals)]; or....
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....uest cannot be granted. 8. Further, having regard to the provision of law referred to above, an order cannot be passed by treating something which is not in existence. Hence, the first relief sought for by the petitioner in the writ petition cannot be granted. 9. The second relief, which is sought for by the petitioner is, a direction to the second respondent to decide the appeal filed by the petitioner by considering the application for withdrawal of petitioner and to dispose of the appeal expeditiously. At first blush, the request made by the petitioner appeared to be quite probable, but a close perusal of the provisions of the Act and the counter filed would show that even if the request of the petitioner for withdrawal of the appe....