Case: The Commissioner of Income Tax, Chennai Vs. Mohammed Meeran Shahul Hameed

263, more particularly sub-section (2) of Section 263 of the Act. It is submitted that the High Court has erred in holding that the revision order dated 26.03.2012 passed by the Commissioner under Section 263 of the Act was barred by period of limitation provided under Section 263 (2) of the Act. 3.1 It is submitted that the High Court has materially erred in holding that the order passed under Section 263 is barred by limitation provided under Section 263 (2) on the ground that order under Section 263 was served on the assessee – respondent herein on 29.11.2012 which was after the expiry of two years from the end of the financial year in which the order was sought to be revised. 3.2 It is vehemently submitted by learned ASG that sub-section (2) of Section 263 of the Act provides that no order shall be made under sub-section (1) of Section 263 after the expiry of two years from the end of the concerned financial year and the relevant date in the present case to pass the order under Section 263 would be 31.03.2012. It is submitted that in the present case the order in fact was passed on 26.03.2012 and in fact dispatched on 28.03.2012. It is submitted that therefore the order passed by the learned Commissioner under Section 263 was within the period of limitation prescribed under Section 263 (2) of the Act. 3.3 Shri R. Sivaraman, learned Advocate appearing on behalf of the respondent – assessee relying upon para 15 of the counter affidavit has submitted that as such the order passed by the learned Commissioner under Section 263 of the Act has been acted upon before it was set aside by learned ITAT and thereafter a fresh assessment order has been passed by the Assessing Officer. It is submitted that therefore as such the issue involved in the present appeal has become academic. 4. We have heard the learned counsel appearing on behalf of the respective parties at length. Though it is the case on behalf of the respondent – assessee that by now the issue involved in the present appeal has become academic, considering the fact that the question of law raised in the present appeal is the pure question of law and therefore we are inclined to decide the said question of law. 4.1 The short question of law which is posed for consideration before this court is, whether in the facts and circumstances of the case, the High Court and the learned ITAT are right in holding that the order passed by the learned Commissioner passed under Section 263 was barred by period of limitation provided under Section 263 (2) of the Act? Whether the High Court is right in holding that the relevant date for the purpose of considering the period of limitation under Section 263(2) of the IT Act would be the date on which the order passed under Section 263 by the learned Commissioner is received by the assessee? 4.2 While deciding the aforesaid issues and question of law, Section 263 (2) of the Income Tax Act, which is relevant for our consideration is required to be referred to, which reads as under:- (2) No order shall be made under sub-section (1) after the expiry of two years from the end of the financial year in which the order sought to be revised was passed. 4.3 On a fair reading of sub-section (2) of Section 263 it can be seen that as mandated by sub-section (2) of Section 263 no order under Section 263 of the Act shall be made after the expiry of two years from the end of the financial year in which the order sought to be revised was passed. Therefore the word used is made and not the order received by the assessee. Even the word dispatch is not mentioned in Section 263 (2). Therefore, once it is established that the order under Section 263 was made/passed within the period of two years from the end of the financial year in which the order sought to be revised was passed, such an order cannot be said to be beyond the period of limitation prescribed under Section 263 (2) of the Act. Receipt of the order passed under Section 263 by the assessee has no relevance for the purpose of counting the period of limitation provided under Section 263 of the Income Tax Act. In the present case, the order was made/passed by the learned Commissioner on 26.03.2012 and according to the department it was dispatched on 28.03.2012. The relevant last date for the purpose of passing the order under Section 263 considering the fact that the assessment was for the financial year 2008-09 would be 31.03.2012 and the order might have been received as per the case of the assessee – respondent herein on 29.11.2012. However as observed hereinabove, the date on which the order under Section 263 has been received by the assessee is not relevant for the purpose of calculating/considering the period of limitation provided under Section 263 (2) of the Act. Therefore the High Court as such has misconstrued and has misinterpreted the provision of sub-section (2) of Section 263 of the Act. If the interpretation made by the High Court and the learned ITAT is accepted in that case it will be violating the provision of Section 263 (2) of the Act and to add something which is not there in the section. As observed hereinabove, the word used is made and not the receipt of the order. As per the cardinal principle of law the provision of the statue/act is to be read as it is and nothing is to be added or taken away from the provision of the statue. Therefore, the High Court has erred in holding that the order under Section 263 of the Act passed by the learned Commissioner was barred by period of limitation, as provided under sub-section (2) of Section 263 of the Act.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 1

Reasoning from the judgment:
1[ds]4. We have heard the learned counsel appearing on behalf of the respective parties at length. Though it is the case on behalf of the respondent – assessee that by now the issue involved in the present appeal has become academic, considering the fact that the question of law raised in the present appeal is the pure question of law and therefore we are inclined to decide the said question of law.4.3 On a fair reading of sub-section (2) of Section 263 it can be seen that as mandated by sub-section (2) of Section 263 no order under Section 263 of the Act shall be made after the expiry of two years from the end of the financial year in which the order sought to be revised was passed. Therefore the word used is made and not the order received by the assessee. Even the word dispatch is not mentioned in Section 263 (2). Therefore, once it is established that the order under Section 263 was made/passed within the period of two years from the end of the financial year in which the order sought to be revised was passed, such an order cannot be said to be beyond the period of limitation prescribed under Section 263 (2) of the Act. Receipt of the order passed under Section 263 by the assessee has no relevance for the purpose of counting the period of limitation provided under Section 263 of the Income Tax Act. In the present case, the order was made/passed by the learned Commissioner on 26.03.2012 and according to the department it was dispatched on 28.03.2012. The relevant last date for the purpose of passing the order under Section 263 considering the fact that the assessment was for the financial year 2008-09 would be 31.03.2012 and the order might have been received as per the case of the assessee – respondent herein on 29.11.2012. However as observed hereinabove, the date on which the order under Section 263 has been received by the assessee is not relevant for the purpose of calculating/considering the period of limitation provided under Section 263 (2) of the Act. Therefore the High Court as such has misconstrued and has misinterpreted the provision of sub-section (2) of Section 263 of the Act. If the interpretation made by the High Court and the learned ITAT is accepted in that case it will be violating the provision of Section 263 (2) of the Act and to add something which is not there in the section. As observed hereinabove, the word used is made and not the receipt of the order. As per the cardinal principle of law the provision of the statue/act is to be read as it is and nothing is to be added or taken away from the provision of the statue. Therefore, the High Court has erred in holding that the order under Section 263 of the Act passed by the learned Commissioner was barred by period of limitation, as provided under sub-section (2) of Section 263 of the Act.