IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 26TH MAY 2011 / 5TH JYAISHTA 1933 WP(C).No. 17701 of 2007(G) -------------------------- PETITIONER(S): --------------- M/S.KERALA AUTOMOBILES LIMITED, ARALUMOODU P.O., THIRUVANANTHAPURAM 695 123, REPRESENTED BY ITS MANAGING DIRECTOR, MR.JACOB JOSEPH. BY ADV. SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.ANIL D. NAIR RESPONDENT(S): --------------- 1. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1(1), THIRUVANANTHAPURAM. 2. COMMISSIONER OF INCOME TAX, THIRUVANANTHAPURAM. SRI.GEORGE K. GEORGE, SC FOR IT THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 17701/2007 APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE REVISION PETITION. P2. COPY OF THE ORDER DTD.23.3.07 BY R2. P3. COPY OF THE ORDER DTD.6.12.05BY R2. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 17701 of 2007 ================== Dated this the 26th day of May, 2011 J U D G M E N T The petitioner is a company registered under the Companies Act owned by the Government of India. The company filed a revision petition under Section 264 of the Income Tax Act, Ext.P1, before the 2nd respondent in respect of acceptability of a revised return filed belatedly. In the revision petition, the petitioner requested for condonation of delay of more than six years in filing the revision petition. By Ext.P2 order, the Commissioner refused to condone the delay and, consequently, the prayer for condonation of delay as well as the revision petition was dismissed. The petitioner is challenging that order in this writ petition. 2. According to the petitioner, the 2nd respondent ought to have considered the revision petition on merits, after condoning the delay, insofar as the petitioner had sufficiently explained the delay satisfactorily in the revision petition itself. The petitioner seeks the following reliefs; “(i) To call for the records leading to issuance of Ext.P2 order and quash the same by issuing a writ of certiorari; (ii) To grant a stay of all further proceedings pursuant to Ext.P2 order pending disposal of the Writ Petition.” 3. The learned standing counsel appearing for the Income Tax w.p.c.17701/07 2 Department supports the impugned order, although no counter affidavit has been filed. 4. In the course of the arguments, this Court raised a doubt as to whether the revision petition itself is maintainable at all, insofar as under Section 264, revision is maintainable by the Commissioner against an order passed by an authority subordinate to him. No order passed by any authority subordinate to the 2nd respondent- Commissioner is the subject matter of Ext.P1 revision. On this question, elaborate arguments were advanced by the counsel for the petitioner. He would contend that an order need not necessarily be an order in writing. It is sufficient, if a subordinate authority of the Commissioner has expressed any binding opinion prejudicial to the interests of the assessee in any proceedings. According to him, for a subsequent assessment year, the Commissioner passed Ext.P3 order of assessment, in which, he had specifically stated that for the year relating to the assessment year, in respect of which, Ext.P1 revision petition was filed, the revised return filed by the petitioner was filed the beyond the time prescribed and has not been accepted by the assessing authority. He submits that from that decision, the assessee came to know that his revised return has not been accepted since it was filed belatedly. Therefore, the petitioner filed a revision petition against that expression of an opinion prejudicial to them by the w.p.c.17701/07 3 assessing authority, which was referred to in Ext.P3 order. Insofar as that decision was not at any time communicated to the petitioner, the petitioner was perfectly justified in filing a revision under Section 264 of the Act against that decision of the assessing authority, is the contention raised. 5. The learned standing counsel for the Income Tax Department, despite the fact that Ext.P2 order has been passed dismissing the application for condonation of delay in filing the revision, now submits that it was a mistake committed by the Commissioner and the Commissioner should not have entertained the revision at all, insofar as the revision is not directed against any specific order of any authority subordinate to the 2nd respondent- Commissioner and, therefore, the Commissioner ought to have rejected the revision as not maintainable. 6. I have considered the rival contentions in detail. 7. It appears that the assessee originally filed a return for the assessment year 1997-98 on 1.12.1997. He filed revised return on 30.3.1997 and still another revised return was filed on 31.12.1999. The revised return filed on 31.12.1999 was admittedly filed beyond the period prescribed under the Act and Rules. Now the subject matter of Ext.P1 revision is the refusal to accept the revised return. The revised return dated 31.12.1999 was filed beyond the period prescribed by the w.p.c.17701/07 4 statute. Therefore, the question of either accepting or rejecting the same does not arise unless the assessee moved the assessing authority for some order in respect of thereof. Insofar as there is no order either accepting or rejecting that revised return, all what the assessee could have done is to challenge the assessment for the assessment year in an appeal as provided under the Act. In fact in Ext.P1, the petitioner does not seek any relief against any order whatsoever of any authority subordinate to the 2nd respondent Commissioner. In fact, the only remedy sought for in the same is regarding the income assessed for the relevant assessment year, which is a question, which the assessee could have raised in an appeal against the assessment itself. 8. Section 264 of the Income Tax Act reads thus; “264. (1) In the case of any order other than an order to which section 263 applies passed by an authority subordinate to him, the Commissioner 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 cause from making the application within that period, admit an application made after the w.p.c.17701/07 5 expiry of that period. (4) The 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); (c) where the order has been made the subject of an appeal to the Commissioner (Appeals) or to the Appellate Tribunal. (5) Every application by an assessee for revision under this section shall be accompanied by a fee of five hundred rupees. (6) On every application by an assessee for revision under this sub- section made on or after the 1st day of October, 1998, an order shall be passed within one year from the end of the financial year in which such application is made by the assessee for revision.” First of all, the revision should be against an order by an authority subordinate to the Commissioner. Secondly, the revision should have been filed within one year from the date on which the order in question was communicated to the assessee or the date on which the assessee otherwise came to know of the same, whichever is earlier. Therefore, for calculating the limitation under the said Section, the starting point is either the date of order or the date on which that order was communicated to the assessee or the date on which the assessee came to know of the order, if it has not been communicated to him. In the present case, insofar as there is no order whatsoever, without such an order, no revision is maintainable. Consequently, I am of opinion w.p.c.17701/07 6 that Ext.P1 revision itself is not maintainable. Therefore, I need not consider the validity of Ext.P2 order passed by the 2nd respondent refusing to condone the delay in filing the same. Accordingly, the writ petition is dismissed. However, this will not stand in the way of the petitioner seeking appropriate other remedies under law against the assessment, which the petitioner is entitled to, otherwise. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge