KANCHANBEN BHIKHABHAI SHAH V. PRINCIPAL COMMISSIONER OF INCOME TAX 1

SCA/7188/2018

AI Insights

The case involves Kanchanben Bhikhabhai Shah, the petitioner, who challenged the decision of the Principal Commissioner of Income Tax regarding the assessment orders for the years 2011-12, 2013-14, and 2014-15. The dispute centered on the depreciation value of a cold storage plant, which the Assessing Officer had reduced by the amount of a government subsidy. The petitioner filed a Revision Petition under section 264 of the Income Tax Act, 1961, which was dismissed due to a nine-day delay in filing, without sufficient explanation. The High Court found that the delay was minor and could have been condoned, thus reviving the Revision Petition for a fresh decision on its merits.

• Counselvise Citation: [2018] 140 COUNSELVISE.COM (IT) 753599 (HC-GUJARAT)
• Appeal Type: Others
• Pronouncement Date: 10-05-2018
• Assessment Year: misc
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: MAUNA BHATT
• Assessee Lawyers: MANISH SHAH
• Keywords: Delay condonation; Depreciation; Income Tax; Revision petition; Subsidy; Cold Storage Plant
• Section: 264

Judgement Text

"C/SCA/7188/2018 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 7188 of 2018 ========================================================== KANCHANBEN BHIKHABHAI SHAH Versus PRINCIPAL COMMISSIONER OF INCOME TAX 1 ========================================================== Appearance: MR MANISH J SHAH(1320) for the PETITIONER(s) No. 1 MRS MAUNA M BHATT(174) for the RESPONDENT(s) No. 1,2 ========================================================== CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE B.N. KARIA Date : 10/05/2018 ORAL ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. Petitioner has challenged an order dated 26.03.2018 passed by the Principal Commissioner of Income Tax, rejecting the petitioner's Revision Petition filed under section 264 of the Income Tax Act, 1961 ('the Act' for short) on the ground that there was no explanation of delay for filing such petition. 2. Facts in brief are as under. 3. Petitioner is an individual. With respect to the petitioner's returns for the assessment years 2011­12, 2013­14 and 2014­15, the Assessing Officer Page 1 of 5 C/SCA/7188/2018 ORDER had passed orders of assessment, in which, the question of depreciation on the cold storage plant was decided by the Assessing Officer against the petitioner. He held that the return tune value of the cold storage plant must be reduced by the subsidy granted by the Government. 4. The petitioner filed a Revision Petition before the Principal Commissioner concerning assessment orders for all these three assessment years. Period of limitation prescribed under sub­section (3) of section 264 of the Act for filing such petition is of one year from the date of communication or knowledge of the order. With the power of the revisional authority to condone delay on sufficient grounds being made out, the Revision Petition came to be dismissed by the Principal Commissioner by the impugned order on the ground that delay of nine days was not explained. He recorded that the assessee has not given any reason, let alone 'sufficient' reason for such delay. 5. Section 264 of the Act concerns the revisional powers of the Commissioner under sub­section (1) of Page 2 of 5 C/SCA/7188/2018 ORDER section 264. The Principal Commissioner or the Commissioner on an application by an assessee or even on his own, would call for the record of any proceedings under the Act in which any order has been passed and pass such order thereon after carrying out necessary inquiries, as he thinks fit. Sub­section (3) of section 264 provides for the period of limitation of one year for filing application for revision before the Commissioner from the date on which the order was communicated to him or from the date otherwise he came to know of it, whichever is earlier. Proviso to sub­section (3) further provides that the Principal Commissioner or the Commissioner if he satisfied that the assessee was prevented by sufficient cause from making such application within the period prescribed, admit the application even after expiry of such period. 6. Sub­section (3) of section 264 of the Act thus while prescribing period of limitation, gives ample power to the Commissioner to accept an application filed beyond such period on sufficient grounds being made out. Page 3 of 5 C/SCA/7188/2018 ORDER 7. In the present case, delay was extremely small. It is true that the petitioner did not set out ground to explain such delay either by filing a separate application or even in the revision petition. However, if the Commissioner was of the opinion that even such minuscule delay in absence of any explanation should be fatal to the Revision Petition, list he could have done was to put the petitioner to notice calling upon her to explain delay or face dismissal of the Revision Petition. Period of limitation for perusing remedies is provided under the statute to regulate the proceedings and to ensure finality beyond a reasonable period. Wherever the legislation desires that the period of limitation should be non­extendable, the intention is manifest in clear terms. In the present case, there is a clear provision for condoning the delay. Defeating the right of revision on the ground of unexplained delay in facts of the present case, could have been avoided by allowing the petitioner to file additional statement explaining such delay. When the delay is extremely small, we condone the same. 8. Impugned order dated 26.03.2018 is set aside. Page 4 of 5 C/SCA/7188/2018 ORDER Revision Petition is revived and placed back for fresh adjudication and disposal on merits. Petition is disposed of. (AKIL KURESHI, J) (B.N. KARIA, J) ANKIT SHAH Page 5 of 5 "