Aditya Marine Limited v. The Deputy Commissioner of Income-tax (International Taxation) and others
[Citation -2019-LL-1003-76]

Citation 2019-LL-1003-76
Appellant Name Aditya Marine Limited
Respondent Name The Deputy Commissioner of Income-tax (International Taxation) and others.
Court HIGH COURT OF BOMBAY
Relevant Act Income-tax
Date of Order 03/10/2019
Assessment Year 2005-06
Judgment View Judgment
Keyword Tags revisional jurisdiction • application of mind • refund claim • alternative remedy
Bot Summary: We agree with the submission of the Petitioner that no appeal under the Act from the impugned order is available to the Petitioner. In the case of any order other than an order to which section 263 applies passed by an authority subordinate to him, the Principal Commissioner or 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. The Assessing Officer i.e. Deputy Commissioner of Income Tax can only pass an order under the Act as the Petitioner was seeking refund of excess amount paid as tax under the Act. We do not find any substance in the submission of the Petitioner that no revision would be available against the impugned order as it is not an order passed under the Act. In the facts of the above case i.e. Larsen Toubro Ltd., an order passed under section 197 of the Act was subject of consideration. The Court while construing the words any order in section 264 of the Act ruled that it is very wide and in that context an order under section 197 of the Act would be subject to revision. If one contrasts section 264 of the Act with section 246A of the Act which provides for appeal, it would be noticed that unlike section 246A of the Act which specifies sections of the Act from which an appeal would lie, section 264 of the Act provides for revision from any order under the Act.


skn 1 2484.19-wp.doc IN HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2484 OF 2019 Aditya Marine Limited. Petitioner. V/s. Deputy Commissioner of Income Tax (International Taxation) and others. Respondents. Mr.Madhur Agrawal with Mr.P.C.Tripathi i/b. Mr.Atul Jasani for Petitioner. Mr.Arvind Pinto for Respondents. CORAM : M.S. SANKLECHA AND NITIN JAMDAR, JJ. DATE : 3 October 2019. P.C. : This petition under Article 226 of Constitution of India challenges order dated 9 April 2019 passed by Deputy Commissioner of Income Tax (International Taxation) under Income Tax Act, 1961 (Act). By impugned order dated 9 April 2019, Petitioner s refund application for excess amount paid as tax in respect of assessment year 2005-06 came to be rejected. ::: Uploaded on - 11/10/2019 ::: Downloaded on - 18/10/2019 09:51:39 ::: skn 2 2484.19-wp.doc 2. impugned order dated 9 April 2019 was passed consequent to directions of this Court dated 1 March 2019 issued in Writ Petition No.344/2019 filed by Petitioner wherein Assessing Officer was directed to dispose of Petitioner s representation regarding refund claim dated 24 January 2019 within period of six weeks from date of order i.e. 1 March 2019. 3. At very outset, we asked Mr.Agrawal, learned counsel appearing for Petitioner whether there is alternate remedy available under Act to have Petitioner s grievance redressed. It was pointed out to us that there is no alternate remedy available under Act as impugned order is not appellable under section 246A of Act. It was also pointed out to us that revision under section 264 of Act would not be available as there is no order passed under any of provisions of Act which would enable Petitioner to file revision application. Mr.Agrawal also submitted that application for refund filed by Petitioner relates to assessment year 2005-06 and delay by itself makes it fit case where extra ordinary jurisdiction should be exercised by this Court and Petitioner should not be relegated to any alternate remedy under Act. 4. On other hand, Mr.Pinto for Revenue, supports impugned order dated 9 April 2019. ::: Uploaded on - 11/10/2019 ::: Downloaded on - 18/10/2019 09:51:39 ::: skn 3 2484.19-wp.doc 5. We agree with submission of Petitioner that no appeal under Act from impugned order is available to Petitioner. This as order in nature of impugned order has not been made appellable under section 246A of Act. However, what remains for consideration is whether revision under section 264 of Act is available. relevant portion of section 264 of Act reads as under: Revision of other orders. 264. (1) In case of any order other than order to which section 263 applies passed by authority subordinate to him, Principal Commissioner or Commissioner may, either of his own motion or on application by assessee for revision, call for 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 provisions of this Act, may pass such order thereon, not being order prejudicial to assessee, as he thinks fit. .. .. .. .. .. .. .. .. .. 6 From above, it is self evident that revision would lie to Commissioner of Income Tax from any order passed by authority subordinate to him in respect of any proceeding under Act. In present case, order has been passed by officer subordinate to Commissioner of Income Tax and same has been passed in respect of proceeding initiated by Petitioner seeking refund. impugned order dated 9 April 2019 adjudicates lis between Revenue and Petitioner. This requires ::: Uploaded on - 11/10/2019 ::: Downloaded on - 18/10/2019 09:51:39 ::: skn 4 2484.19-wp.doc examination of facts for adjudication of dispute. Moreover, impugned order has been passed under Act. Assessing Officer i.e. Deputy Commissioner of Income Tax can only pass order under Act as Petitioner was seeking refund of excess amount paid as tax under Act. We, therefore, do not find any substance in submission of Petitioner that no revision would be available against impugned order as it is not order passed under Act. Thus, remedy of revision under section 264(1) of Act would be available to Petitioner. 7. Our attention was drawn by learned counsel for Petitioner to decision of this Court in case of Larsen & Toubro Ltd. v. Assistant Commissioner of Income Tax 1 to contend that only order passed under specific provision of Act will alone be amenable to revisional jurisdiction of Commissioner. In facts of above case i.e. Larsen & Toubro Ltd. (supra), order passed under section 197 of Act was subject of consideration. In that context, it was held that order passed under section 197 of Act require application of mind to facts of case before it in revision under section 264 of Act. In fact, Court while construing words any order in section 264 of Act ruled that it is very wide and in that context order under section 197 of Act would be subject to revision. However, above case does not any where hold that for revision being available to assessee from order of officer sub-ordinate to 1 (2010) 326 ITR 514 (Bom) ::: Uploaded on - 11/10/2019 ::: Downloaded on - 18/10/2019 09:51:39 ::: skn 5 2484.19-wp.doc Commissioner of Income Tax, it is necessary to be passed under specific provision of Act. 8. In fact, if one contrasts section 264 of Act with section 246A of Act which provides for appeal, it would be noticed that unlike section 246A of Act which specifies sections of Act from which appeal would lie, section 264 of Act provides for revision from `any order under Act. This is another indication that Commissioner of Income Tax has very wide powers to correct any order passed by officer subordinate to him. 9. In above view, we are not inclined to entertain this petition as efficacious alternate remedy is available to Petitioner under Act. Accordingly, writ petition is dismissed. NITIN JAMDAR, J. M.S. SANKLECHA, J. ::: Uploaded on - 11/10/2019 ::: Downloaded on - 18/10/2019 09:51:39 ::: Aditya Marine Limited v. Deputy Commissioner of Income-tax (International Taxation) and other
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