|COURT:||Bombay High Court|
|CORAM:||M. S. Sanklecha J, N. M. Jamdar J|
|SECTION(S):||246A, 264, Article 226, Article 227|
|CATCH WORDS:||alternate remedy, Writ jurisdiction|
|COUNSEL:||Arvind Pinto, Madhur Agrawal|
|DATE:||October 3, 2019 (Date of pronouncement)|
|DATE:||October 23, 2019 (Date of publication)|
|FILE:||Click here to download the file in pdf format|
|Writ Petition for non-grant of refund: Though an order refusing to issue refund is not an appeallable order u/s 246A, it is subject to revision u/s 264. As the alternate remedy of revision is available, the Writ is not maintainable (Larsen & Toubro 326 ITR 514 (Bom) referred)|
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2484 OF 2019
Aditya Marine Limited. … Petitioner.
The Deputy Commissioner of Income Tax
(International Taxation) and others. … Respondents.
Mr.Madhur Agrawal with Mr.P.C.Tripathi i/b. Mr.Atul Jasani
for the Petitioner.
Mr.Arvind Pinto for the Respondents.
CORAM : M.S. SANKLECHA AND
NITIN JAMDAR, JJ.
DATE : 3 October 2019.
This petition under Article 226 of the Constitution of
India challenges the order dated 9 April 2019 passed by the Deputy
Commissioner of Income Tax (International Taxation) under the
Income Tax Act, 1961 (Act). By the impugned order dated 9 April
2019, the Petitioner’s refund application for the excess amount paid
as tax in respect of assessment year 2005-06 came to be rejected.
2. The impugned order dated 9 April 2019 was passed
consequent to the directions of this Court dated 1 March 2019 issued
in Writ Petition No.344/2019 filed by the Petitioner wherein the
Assessing Officer was directed to dispose of the Petitioner’s
representation regarding refund claim dated 24 January 2019 within
a period of six weeks from the date of the order i.e. 1 March 2019.
3. At the very outset, we asked Mr.Agrawal, the learned
counsel appearing for the Petitioner whether there is an alternate
remedy available under the Act to have the Petitioner’s grievance
redressed. It was pointed out to us that there is no alternate remedy
available under the Act as the impugned order is not appellable under
section 246A of the Act. It was also pointed out to us that revision
under section 264 of the Act would not be available as there is no
order passed under any of the provisions of the Act which would
enable the Petitioner to file revision application. Mr.Agrawal also
submitted that the application for refund filed by the Petitioner
relates to the assessment year 2005-06 and the delay by itself makes it
a fit case where extra ordinary jurisdiction should be exercised by this
Court and the Petitioner should not be relegated to any alternate
remedy under the Act.
4. On the other hand, Mr.Pinto for the Revenue, supports
the impugned order dated 9 April 2019.
5. We agree with the submission of the Petitioner that no
appeal under the Act from the impugned order is available to the
Petitioner. This as the order in the nature of the impugned order has
not been made appellable under section 246A of the Act. However,
what remains for consideration is whether revision under section 264
of the Act is available. The relevant portion of section 264 of the
Act reads as under:
“Revision of other orders.
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 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.
….. ….. ….. ….. ….. ….. ….. ….. …..”
6 From the above, it is self evident that a revision would lie
to the Commissioner of Income Tax from any order passed by the
authority subordinate to him in respect of any proceeding under the
Act. In the present case, the order has been passed by the officer
subordinate to the Commissioner of Income Tax and the same has
been passed in respect of proceeding initiated by the Petitioner
seeking refund. The impugned order dated 9 April 2019 adjudicates
a lis between the Revenue and the Petitioner. This requires an
examination of facts for adjudication of the dispute. Moreover, the
impugned order has been passed under the Act. 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, therefore, 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. Thus, remedy of revision under section 264(1) of the
Act would be available to the Petitioner.
7. Our attention was drawn by the learned counsel for the
Petitioner to the decision of this Court in the case of Larsen &
Toubro Ltd. v. Assistant Commissioner of Income Tax1 1 (2010) 326 ITR 514 (Bom) to contend
that only the order passed under the specific provision of the Act will
alone be amenable to the revisional jurisdiction of the Commissioner.
In the facts of the above case i.e. Larsen & Toubro Ltd. (supra), an
order passed under section 197 of the Act was subject of
consideration. In that context, it was held that the order passed
under section 197 of the Act require application of mind to the facts
of the case before it in a revision under section 264 of the Act. In
fact, 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. However,
the above case does not any where hold that for the revision being
available to the assessee from the order of the officer sub-ordinate to
the Commissioner of Income Tax, it is necessary to be passed under
the specific provision of the Act.
8. In fact, 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. This is another
indication that the Commissioner of Income Tax has very wide
powers to correct any order passed by an officer subordinate to him.
9. In the above view, we are not inclined to entertain this
petition as an efficacious alternate remedy is available to the
Petitioner under the Act.
Accordingly, the writ petition is dismissed.
NITIN JAMDAR, J. M.S. SANKLECHA, J.