A. JEBASUNDAR V. THE COMMISSIONER OF INCOME

WP(MD)/10188/2011

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The case involves a group of petitioners who challenged the rejection of their revision petitions under Section 264 of the Income Tax Act, 1961. Initially, the petitioners filed appeals against their assessment orders for the years 1979-1980 to 1985-1986, which were later withdrawn to file revision petitions. The revisions were initially filed without condone delay petitions, leading to their rejection. The court examined whether the rejection of these revisions without considering the condone delay petitions on merits was appropriate.

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 727839 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 19-10-2011
• Assessment Year: misc
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: R SATHIAMOORTHY
• Assessee Lawyers: A R L SUNDARESAN
• Keywords: Condone delay; Income tax assessment; Revision application; Revisional Authority; Writ of Certiorarified Mandamus
• Section: 264; 254; 226

Judgement Text

"1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19.10.2011 CORAM THE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIAN W.P.(MD)NO.10188 of 2011 and M.P.(MD)Nos.1 and 2 of 2011 1.A.Jebasundari 2.K.Joseph Packiaraj 3.K.Francis Ignatius Roche 4.K.James Baskar 5.K.Peter Jeyakumar ... Petitioners Versus 1. The Commissioner of Income Tax-I, No.2 V.P.Rathinasamy Nadar Road, Bibikulam, Madurai – 625 002. 2. The Income Tax Officer, Ward I/II/TIN, Tuticorin. 3. The Tax Recovery Officer, O/o. The Tax Recovery Office, 6T, North Cotton Road, Tuticorin – 628 001. ... Respondents PRAYER : Writ petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, to call for the records relating to proceedings in C.No.407/09/CIT-I/2011-12 dated 19.08.2011 of the first respondent and quash the same and direct the first respondent to take the revision application in C.No.407/09/CIT-I/2011-12/MDU on file, filed by the petitioners under Section 264 of Income Tax Act, 1961 and dispose the same. For Petitioner : Mr.AR.L.Sundaresan Senior Counsel For Respondents : Mr.R.Sathiamoorthy Senior Standing Counsel for Income Tax https://hcservices.ecourts.gov.in/hcservices/ 2 O R D E R The petitioners have come up with the above writ petition challenging an order by which the petition for revision submitted under Section 264 of the Income Tax Act, 1961 was rejected on the ground that it was not accompanied by a petition to condone the delay. 2. Heard Mr.AR.L.Sundaresan, learned Senior Counsel for the petitioners and Mr.R.Sathiamoorthy, learned Senior Standing Counsel for the Income Tax Department. 3. In respect of the Assessment Years 1979-1980 to 1985-1986 (7 Assessment Years), independent orders of assessment were passed by the Income Tax Officer on 28.07.2009. The petitioners first filed appeals under Section 254 within the period of limitation. They were actually filed on 07.10.2009. 4. However on a change of mind, the petitioners filed revisions under Section 264(1) on 27.12.2010. But at that time the appeals filed by the petitioners on 07.10.2009 were actually pending. Therefore the revision petitions could not be entertained. 5. Realising this difficulty the petitioners withdrew the appeals with liberty to work out their remedies in the revision petitions. The Commissioner of Income Tax Department (Appeals) passed an order on 29.07.2011 permitting to withdraw all the appeals. 6. In the meantime the petitioners filed fresh revision petitions on 25.07.2011. After the appeals were permitted to be withdrawn on 29.07.2011, the petitioners also filed condone delay petitions on 01.08.2011. 7. However by a common order dated 19.08.2011, the revisional authority has rejected all the revisions on the ground that as they were not accompanied by condone delay petitions and that condone delay petitions filed after the filing of the revision petitions cannot be entertained. Aggrieved by the said order the petitioners have come up with the above writ petition. 8. The short question that arises for consideration is as to whether the rejection of the revisions by the revisional authority without considering the condone delay petitions on merits, is proper or not. 9. Section 264(1) entitles the assessee to file an application for revision of an order of assessment. But sub-Section (4) of Section 264 indicates the restrictions for the exercise of the power of revision. Under sub-Section (4), a petition for revision cannot be entertained if an appeal is pending before the Commissioner or if the right of appeal has not been waived. The petitioners have, by withdrawing the appeals, waived the right of appeals. https://hcservices.ecourts.gov.in/hcservices/ 3 10. The proviso to sub-Section (3) of Section 264 confers power upon the revisional authority to condone the delay in filing the revision petitions. While sub-Section (3) prescribes a period of limitation of one year for filing revisions, the proviso confers power for condonation of delay. 11. Therefore it is not really material as to whether on the date on which the revision petitions were filed they were accompanied by condone delay petitions or not. If before the rejection of the revision petitions, condone delay petitions had been filed, the first respondent could have considered the condone delay petitions on merits. The fact that the revisions were not accompanied by condone delay petitions would only be a curable defect and hence the respondents should consider the condone delay petitions. 12. In view of the above, the writ petition is allowed and the impugned order is set aside and the first respondent is directed to pass orders on the condone delay application and take up the revisions themselves and dispose of all the revisions within a period of three months from the date of receipt of a copy of this order. Consequently, connected miscellaneous petitions are closed. No costs. Sd/- Assistant Registrar (Records) /True Copy/ Sub Assistant Registrar To 1. The Commissioner of Income Tax-I, No.2 V.P.Rathinasamy Nadar Road, Bibikulam, Madurai – 625 002. 2. The Income Tax Officer, Ward I/II/TIN, Tuticorin. 3. The Tax Recovery Officer, O/o. The Tax Recovery Office, 6T, North Cotton Road, Tuticorin – 628 001. +1 CC to Mr.AN.Ramanathan, Advocate (SR.No.36567) W.P.(MD)NO.10188 of 2011 19.10.2011 ps NSV/1.11.11/3P/5C https://hcservices.ecourts.gov.in/hcservices/ "