IN THE HIGH COURT OF JUDICATURE AT BOMBAY
\nORDINARY ORIGINAL CIVIL JURISDICTION
\nWRIT PETITION NO. 2484 OF 2019
\nAditya Marine Limited. \u2026 Petitioner.
\nV\/s.
\nThe Deputy Commissioner of Income Tax
\n(International Taxation) and others. \u2026 Respondents.
\nMr.Madhur Agrawal with Mr.P.C.Tripathi i\/b. Mr.Atul Jasani
\nfor the Petitioner.
\nMr.Arvind Pinto for the Respondents.
\nCORAM : M.S. SANKLECHA AND
\nNITIN JAMDAR, JJ.
\nDATE : 3 October 2019.
\nP.C. :
\nThis petition under Article 226 of the Constitution of
\nIndia challenges the order dated 9 April 2019 passed by the Deputy
\nCommissioner of Income Tax (International Taxation) under the
\nIncome Tax Act, 1961 (Act). By the impugned order dated 9 April
\n2019, the Petitioner\u2019s refund application for the excess amount paid
\nas tax in respect of assessment year 2005-06 came to be rejected.<\/p>\n
2. The impugned order dated 9 April 2019 was passed
\nconsequent to the directions of this Court dated 1 March 2019 issued
\nin Writ Petition No.344\/2019 filed by the Petitioner wherein the
\nAssessing Officer was directed to dispose of the Petitioner\u2019s
\nrepresentation regarding refund claim dated 24 January 2019 within
\na period of six weeks from the date of the order i.e. 1 March 2019.<\/p>\n
3. At the very outset, we asked Mr.Agrawal, the learned
\ncounsel appearing for the Petitioner whether there is an alternate
\nremedy available under the Act to have the Petitioner\u2019s grievance
\nredressed. It was pointed out to us that there is no alternate remedy
\navailable under the Act as the impugned order is not appellable under
\nsection 246A of the Act. It was also pointed out to us that revision
\nunder section 264 of the Act would not be available as there is no
\norder passed under any of the provisions of the Act which would
\nenable the Petitioner to file revision application. Mr.Agrawal also
\nsubmitted that the application for refund filed by the Petitioner
\nrelates to the assessment year 2005-06 and the delay by itself makes it
\na fit case where extra ordinary jurisdiction should be exercised by this
\nCourt and the Petitioner should not be relegated to any alternate
\nremedy under the Act.<\/p>\n
4. On the other hand, Mr.Pinto for the Revenue, supports
\nthe impugned order dated 9 April 2019.<\/p>\n
5. We agree with the submission of the Petitioner that no
\nappeal under the Act from the impugned order is available to the
\nPetitioner. This as the order in the nature of the impugned order has
\nnot been made appellable under section 246A of the Act. However,
\nwhat remains for consideration is whether revision under section 264
\nof the Act is available. The relevant portion of section 264 of the
\nAct reads as under:<\/p>\n
\u201cRevision of other orders.<\/p>\n
264. (1) In the case of any order other than an order to
\nwhich section 263 applies passed by an authority
\nsubordinate to him, the Principal Commissioner or
\nCommissioner may, either of his own motion or on an
\napplication by the assessee for revision, call for the record
\nof any proceeding under this Act in which any such order
\nhas been passed and may make such inquiry or cause such
\ninquiry to be made and, subject to the provisions of this
\nAct, may pass such order thereon, not being an order
\nprejudicial to the assessee, as he thinks fit.
\n\u2026.. \u2026.. \u2026.. \u2026.. \u2026.. \u2026.. \u2026.. \u2026.. \u2026..\u201d<\/p>\n
6 From the above, it is self evident that a revision would lie
\nto the Commissioner of Income Tax from any order passed by the
\nauthority subordinate to him in respect of any proceeding under the
\nAct. In the present case, the order has been passed by the officer
\nsubordinate to the Commissioner of Income Tax and the same has
\nbeen passed in respect of proceeding initiated by the Petitioner
\nseeking refund. The impugned order dated 9 April 2019 adjudicates
\na lis between the Revenue and the Petitioner. This requires an
\nexamination of facts for adjudication of the dispute. Moreover, the
\nimpugned order has been passed under the Act. The Assessing
\nOfficer i.e. Deputy Commissioner of Income Tax can only pass an
\norder under the Act as the Petitioner was seeking refund of excess
\namount paid as tax under the Act. We, therefore, do not find any
\nsubstance in the submission of the Petitioner that no revision would
\nbe available against the impugned order as it is not an order passed
\nunder the Act. Thus, remedy of revision under section 264(1) of the
\nAct would be available to the Petitioner.<\/p>\n
7. Our attention was drawn by the learned counsel for the
\nPetitioner to the decision of this Court in the case of Larsen &
\nToubro Ltd. v. Assistant Commissioner of Income Tax1 1 (2010) 326 ITR 514 (Bom) to contend
\nthat only the order passed under the specific provision of the Act will
\nalone be amenable to the revisional jurisdiction of the Commissioner.
\nIn the facts of the above case i.e. Larsen & Toubro Ltd. (supra), an
\norder passed under section 197 of the Act was subject of
\nconsideration. In that context, it was held that the order passed
\nunder section 197 of the Act require application of mind to the facts
\nof the case before it in a revision under section 264 of the Act. In
\nfact, the Court while construing the words \u201cany order\u201d in section 264
\nof the Act ruled that it is very wide and in that context an order
\nunder section 197 of the Act would be subject to revision. However,
\nthe above case does not any where hold that for the revision being
\navailable to the assessee from the order of the officer sub-ordinate to
\nthe Commissioner of Income Tax, it is necessary to be passed under
\nthe specific provision of the Act.<\/p>\n
8. In fact, if one contrasts section 264 of the Act with
\nsection 246A of the Act which provides for appeal, it would be
\nnoticed that unlike section 246A of the Act which specifies sections
\nof the Act from which an appeal would lie, section 264 of the Act
\nprovides for revision from `any order\u2019 under the Act. This is another
\nindication that the Commissioner of Income Tax has very wide
\npowers to correct any order passed by an officer subordinate to him.<\/p>\n
9. In the above view, we are not inclined to entertain this
\npetition as an efficacious alternate remedy is available to the
\nPetitioner under the Act.<\/p>\n
Accordingly, the writ petition is dismissed.
\nNITIN JAMDAR, J. M.S. SANKLECHA, J.<\/p>\n","protected":false},"excerpt":{"rendered":"
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\u2019 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<\/p>\n