Maintainability of Revisione Application under section 264 & Non waiver of right of appeal
Short Overview Assessee had not filed appeal against order under section 143(1) under section 246A and time of 30 days to file the same had also admittedly expired. Once such an option had been exercised, a plain reading of the section suggests that it would not then be necessary for assessee to waive such right. That waiver would have been necessary if time to file the appeal would not have expired. Accordingly, Pr.CIT was directed to decide application filed by assessee under section 264 afresh on merits.
Assessee, in his return of income had erroneously offered to tax gains arising on sale of shares as short-term capital gains, instead of same being offered as long-term capital gains exempt from tax. Assessee filed rectification application under section 154 which was rejected. Thereafter, assessee filed revision application under section 264, which was rejected on the ground that application was not maintainable as alternate effective remedy of appeal was available and there was no waiver of appeal by the assessee.
It is held that In clause (a) of section 264 (4), in the language between filing of an appeal and expiry of such period and waiver of assessee to his right of appeal there is an ‘or’, thereby meaning that there is an option, i.e., either the assessee should not have filed an appeal and the period of filing the same should have expired or he should have waived such right. Hence, there are two situations which are contemplated in said sub-section (4)(a) of section 264. The section cannot be interpreted to mean that for Pr. CIT to exercise his powers of revision under section 264 not only that time for filing the appeal should have expired but also that assessee should have waived his right of appeal. That is not how the section can be read. In the facts of case, assessee had not filed appeal against order under section 143 (1) under section 246A and time of 30 days to file the same had also admittedly expired. Once such an option had been exercised, a plain reading of the section suggests that it would not then be necessary for assessee to waive such right. That waiver would have been necessary if time to file the appeal would not have expired. Accordingly, Pr.CIT was directed to decide application filed by assessee under section 264 afresh on merits.
Decision: In assessee s favour.
Distinguished: Dwarka Nath v. ITO & Anr. (1965) 57 ITR 349 (SC) : 1965 TaxPub(DT) 299 (SC).
IN THE BOMBAY HIGH COURT
SUNIL P. DESHMUKH & ABHAY AHUJA, JJ.
Aafreen Fatima Fazal Abbas Sayed v. ACIT
Writ Petition (L) No. 6096 of 2021
8 April, 2021
Petitioner by: K. Gopal with Neha Paranjpe
Respondents by: Sham Walve
JUDGEMENT