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Gausia Cold Storage Pvt. Ltd vs. ACIT (ITAT Mumbai)

COURT:
CORAM: ,
SECTION(S):
GENRE:
CATCH WORDS: ,
COUNSEL:
DATE: January 16, 2015 (Date of pronouncement)
DATE: January 16, 2015 (Date of publication)
AY: 2006-07
FILE: Click here to download the file in pdf format
CITATION:
S. 264: ITAT entertains appeal against order passed by CIT u/s 264

The assessee sought revision of its assessment, finalized u/s.143(3) on 03.12.2008, accepting the returned income of Rs.35,19,179/-, u/s.264 of the Act on the ground that the deduction u/s.80-IB, to which it was entitled, had not been allowed per the impugned assessment. The deduction, for which it was otherwise eligible since the first year of operating a cold storage, i.e., A.Y. 1998-99, could not be claimed up to the immediately preceding year on account of continued losses. The assessee returning profit for the first time for the current year, forgot to prefer the claim u/s.80-IB, and hence its petition u/s.264. The ld. CIT, as a competent authority, rejected the same on the ground that the said claim had not been made either per the return of income for the year or even during the assessment proceedings, so that the application for revision u/s.264, as made, is misconceived and not maintainable. Reliance was also placed by him on the decision in the case of Goetze (India) Ltd. vs. CIT [2006] 284 ITR 323 (SC). On appeal by the assessee to the Tribunal:

We have heard the party before us, and perused the material on record. Without doubt, the impugned order is not a speaking order, i.e., not dilating on the scope of the revision u/s.264, on the maintainability or otherwise in law of the petition under which the fate of the assessee’s appeal would lie. The assessee, on the other hand, has cited several decisions by the higher courts of law, including by the apex court, qua the scope of provision u/s.264, viz. Dwarka Nath vs. ITO [1965] 57 ITR 349 (SC); Ramdev Exports vs. CIT [2001] 251 ITR 873 (Guj); Parekh Brothers vs. CIT [1984] 150 ITR 105 (Ker); and M. Chettyappan & Ors. v. CIT [1977] 110 ITR 684 (Mad). Under the circumstances, we only consider it fit and proper to restore the matter back to the file of the ld. CIT to adjudicate the assessee-appellant’s application afresh in accordance with the law per a speaking order and after allowing a reasonable opportunity of hearing to it.

Note: This may be the first time that an appeal against a s. 264 revision order has been entertained by the ITAT
9 comments on “Gausia Cold Storage Pvt. Ltd vs. ACIT (ITAT Mumbai)
  1. R Swaminathan says:

    There was no one representing the appellant and it is an ex-parte order. Further, as mentioned in this website this is the first appeal against an order u/s 264 being entertained by ITAT. Nice to see such orders. This order shows the fairness and judicious approach of the Hon’ble members of ITAT.

  2. Ray says:

    All the decisions referred to in the order (57 ITR 349, 251 ITR 873, 150 ITR 105 and 110 ITR 684) were rendered in writ petitions against revision orders under section 264 and none of these decisions hold that the Tribunal has the powers to entertain appeals against such revision orders as passed under section 264. Whatever little a student of Indian Income Tax Act, 1961 can understand, no appeal lies against orders passed under section 264. The only remedy to the assessee is in writ petition before Hon’ble High Court.

    Is there any judicial precedent to support the proposition that the Tribunal can entertain appeals against orders passed by the Commissioner under section 264?

  3. Ray says:

    All the decisions referred to in the order (57 ITR 349, 251 ITR 873, 150 ITR 105 and 110 ITR 684) were rendered in writ petitions against revision orders under section 264 and none of these decisions hold that the Tribunal has the powers to entertain appeals against such revision orders as passed under section 264. Whatever little a student of Indian Income Tax Act, 1961 can understand, no appeal lies against orders passed under section 264. The only remedy to the assessee appears to be, to many of us, only in writ petition before Hon’ble High Court.

    Is there any judicial precedent to support the proposition that the Tribunal can entertain appeals against orders passed by the Commissioner under section 264? I will be grateful for guidance.

  4. A reader says:

    It could as well be the last order by the ITAT on the 264 order, unless the Income Tax Act is amended.

  5. ITAT (M) rightly handled the facts of the matter please!

  6. Sher Singh says:

    How can this be passed especially when Ld. VP is part of the bench. On one hand there are nearly 100 Thousands cases are pending, first hearing in Mumbai ITAT is granted after nearly 1.5 years, Only 4 benches work on an average per week, there are number of visitors in Chambers of Members after 2.30 PM everyday and on the other hand, such orders are passed in an arrogant ignorance/negligence of law..

  7. Ray says:

    @ Hon’ble Dr G Balakrishnan

    Will you kindly explain a little bit, Sir.

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