W.P.No.3980 of 2018 IN HIGH COURT OF JUDICATURE AT MADRAS Dated: 24.09.2019 CORAM HONOURNABLE MR.JUSTICE K.RAVICHANDRABAABU W.P.No.3980 of 2018 and W.M.P.No.4891 of 2018 M/s. Aadil Ashfaque & Co.Pvt.Ltd. rep. by its Director, V.Aadil Ahmed, Flat No.A-26, 1st Floor, Ram Square, Village Road, Nungambakkam, Chennai - 600034. Petitioner Vs. 1. Principal Commissioner of Income Tax, Chennai-I, Chennai, Room No.702, 7th Floor, New Block, 121, Mahatma Gandhi Road, Chennai - 34. 2. Deputy Commissioner of Income Tax, Corporate Circle-I (1), Chennai. Respondent s Writ Petition filed under Article 226 of Constitution of India to issue Writ of Certiorarified Mandamus to call for records in C.No.217/6/Pr.CIT-1/2015-16 dated 20.03.2017 and quash same and 1/8 http://www.judis.nic.in W.P.No.3980 of 2018 direct 1st respondent to adjudicate revision petition on merits of case. For Petitioner : Mr.G.Ashokapathy for M/s.Pass Associates For Respondents : Mrs.Hema Muralikrishnan, Senior Standing Counsel ORDER petitioner is aggrieved against order of first respondent dated 20.03.2017 in rejecting application filed by petitioner under Section 264 of Income Tax Act, 1961, on ground that same was filed beyond time stipulated under section 264. first respondent found that said application was filed nearly after seven years from date of intimation under section 143(1) dated 20.10.2008 and no specific petition indicating reasons for delay and seeking condonation of delay has been filed along with section 264 petition. 2. Heard both sides. 3. case of petitioner in short is as follows: For assessment year 2007-08, petitioner filed e-return on 2/8 http://www.judis.nic.in W.P.No.3980 of 2018 29.10.2007. petitioner earned gross total income and total income of Rs.56,91,233/- and however, due to inadvertence and by mistake committed by employee of petitioner Company, both gross total income and total income were shown as Rs.2,74,47,877/-, instead of 56,91,233/-. Therefore, petitioner filed its revised return on 26.07.2010 altering only figures in gross total income and total income without making any changes with respect to other columns and with income computation. While so, after five years of filing revised return, petitioner company received communication dated 07.08.2015 stating that there is outstanding of tax demand for assessment year 2007-08 to Rs.87,26,080/-. petitioner was not aware of intimation issued under section 143(1) till it was received by them on 23.09.2015. Therefore, petitioner approached first respondent and filed application under Section 264 on 06.10.2015. same was rejected by impugned order on reason it was filed beyond period of limitation. 4. counter affidavit is filed by respondents wherein it is stated as follows: intimation under Section 143(1) was passed on 20.10.2008 and 3/8 http://www.judis.nic.in W.P.No.3980 of 2018 information regarding outstanding demand was uploaded as early as 2008 and was available on e-filing portal of petitioner. Therefore, contention of petitioner as if no intimation was served or received by petitioner under section 143(1) is wrong. petitioner filed revised return on 26.07.2010 on becoming aware of intimation raising demand. date of knowledge for purpose of application under Section 264 is not 23.09.2015 as contended by petitioner. application under section 264 was rejected after considering merits of facts and circumstances. 5. Learned counsel for petitioner reiterated contentions raised in affidavit filed in support of writ petition and submitted that bonafide mistake is sought to be rectified only in respect of figure shown as gross total income in relevant columns and authorities ought to have considered same and decided matter on merits after perusing entire records. Therefore, he contended that rejection of application on technical ground of limitation would result in undue hardship to petitioner since he is called upon to pay tax in respect of income over and above actual gross income, as shown by petitioner in their revised return. 4/8 http://www.judis.nic.in W.P.No.3980 of 2018 6. On other hand, learned senior standing counsel for respondents submitted that petitioner has not chosen to take steps to rectify mistake within time, even assuming there is mistake and therefore, 1st respondent has rightly rejected application as time barred one. 7. Upon hearing learned counsels for respective parties and perusing materials placed before this Court, it is evident that petitioner claims that gross total income shown in original return filed on 29.10.2007 as Rs.2,74,47,877/- is factual mistake and on other hand, it is only sum of Rs.56,91,233/- as sum to be reflected as gross total income in all places. In order to rectify such mistake, it is seen that petitioner has filed revised return on 26.07.2010. By that time, it seems that intimation under section 143(1) raising demand was issued on 20.10.2008 itself. According to petitioner, they are not aware of such intimation. On other hand, it is contended by revenue that such intimation was readily available in e-filing portal of petitioner. No doubt, petitioner has approached first respondent and filed application under section 264 to set right dispute. However, fact remains that such application was filed on 5/8 http://www.judis.nic.in W.P.No.3980 of 2018 06.10.2015 with delay. first respondent has specifically pointed out that petitioner has not filed any application to condone delay specifically indicating reasons for such delay. It is also seen that first respondent has chosen to reject application only on ground that it was filed belatedly. Therefore, this Court is of view that ends of justice would be met if matter is remitted back to first respondent for reconsidering matter afresh if petitioner is in position to satisfy first respondent that delay in filing such application under section 264 was neither willful or intentional. 8. Accordingly, without expressing any view on merits of claim made by respective parties, this Writ Petition is disposed of as follows: a) order of first respondent impugned in this writ petition is set aside and application filed under section 264 dated 06.10.2015 is restored to file. b) petitioner is directed to file application for condonation of delay before first respondent explaining all reasons for such delay. Such application shall be filed within period of two weeks from date of receipt of copy of this order. 6/8 http://www.judis.nic.in W.P.No.3980 of 2018 (c) On receipt of such application, first respondent shall consider delay application and thereafter pass order on same on merits and in accordance with law. If first respondent is satisfied with reasons, he shall go into merits of Section 264 application and pass fresh orders on merits and in accordance with law on such application. whole exercise shall be completed by first respondent within period of six weeks from date of receipt of application filed by petitioner seeking to condone delay. No costs. Consequently, connected miscellaneous petition is closed. 24.09.2019 Speaking/Non-speaking order Index:Yes/No vsi To 1. Principal Commissioner of Income Tax, Chennai-I, Chennai, Room No.702, 7th Floor, New Block, 121, Mahatma Gandhi Road, Chennai - 34. 2. Deputy Commissioner of Income Tax, Corporate Circle-I (1), Chennai. 7/8 http://www.judis.nic.in W.P.No.3980 of 2018 K.RAVICHANDRABAABU,J. vsi W.P.No.3980 of 2018 24.09.2019 8/8 http://www.judis.nic.in Aadil Ashfaque & Co. Pvt. Ltd. v. Principal Commissioner of Income-tax, Chennai-I, Chennai / Deputy Commissioner of Income-tax, Corporate Circle-I (1), Chennai