Arun Kumar Jain vs Commissioner of Income Tax and Another

P. K. Jain, J.—Heard Sri Rakesh Ranjan Agarwal, learned counsel for the revisionist, and Shri Ashok Kumar, learned standing counsel appearing for the opposite party.

By the present writ petition, the petitioner challenges the order dated December 31, 1999, and prays for quashing the same on the ground that the Commissioner of Income Tax, Meerut, has wrongly held that the revision was not maintainable.

The brief facts appear to be that against the assessment order for the assessment year 1995-96, the petitioner filed an appeal u/s 249 of the Income Tax Act. He had not deposited the Income Tax due on the income returned by him. Feeling that the appeal shall not be admitted in view of the provisions contained in Section 249(4) of the Income Tax Act, he withdrew the appeal and thereafter filed revision u/s 264 of the Act. The Commissioner dismissed the said revision being not maintainable in view of the provisions contained in Section 264(4)(a) of the Act.

The submission of Sri Agarwal, learned counsel for the petitioner, is that in view of the circular dated July 26, 1983, issued by the Commissioner the appeal which has been withdrawn shall not be treated to have been made the subject of an appeal. Hence, the order passed by the Commissioner of Income Tax is against the law. Sri Ashok Kumar has, however, pointed out that the revision has been dismissed under the provisions of Section 264(4)(a) of the Act.

Section 249(4) of the Act reads as follows :

"(4) No appeal under this Chapter shall be admitted unless at the time of filing of the appeal,--

(a) where a return has been filed by the assessee, the assessee has paid the tax due on the income returned by him ; or

(b) where no return has been filed by the assessee, the assessee has paid an amount equal to the amount of advance tax which was payable by him."

A bare perusal of the above clauses of Section 249(4) would show that they do not provide with regard to the maintainability of the appeal. Clause (a) of Section 249(4) provides that unless the amount of tax due on the income returned is deposited or paid, the appeal under this Chapter shall not be admitted. Section 264(4) bars the revision in three contingencies. Under Clause (a) of Section 264(4), the revision shall not be entertained where an appeal against the order lies but has not been made or the time within which such appeal may be made has not expired and in case of an appeal to the Commissioner (Appeals) or to the Appellate Tribunal, the assessee has not waived his right of appeal. The second contingency is where the order is on an appeal pending before the Deputy Commissioner (Appeals) and the third contingency is where the order has been made the subject of an appeal to the Commissioner (Appeals) or to the Appellate Tribunal. The distinction between the provisions of Clause (a) and Clause (c) of Section 264(4) is that under Clause (a) when the appeal lies against the order and the same has not been made and the time for appeal has not expired, the revision shall not lie. In cases where the assessee has not waived his right of appeal in that case also under Clause (a) of Sub-section (4) of Section 264 the revision shall not lie whereas under Clause (c) the revision shall not lie in case the order against which an appeal lies has been made the subject-matter of an appeal. In the instant case there cannot be doubt that once the appeal was withdrawn, the assessment order against which revision could be filed was not the subject-matter of appeal. The petitioner''s case is not certainly covered by Clause (c) of Section 264(4) of the Income Tax Act. There cannot be doubt that the order against which the revision was sought to be filed was appealable. The first condition as already pointed out above under Sub-section (4)(a) of Section 264 was where an appeal against the order lies. There is a distinction between the language used in sections 249 and 264(4)(a) of the Act. Section 249 of the Act prohibits the authority concerned from admitting an appeal in case the conditions provided u/s 249(4)(a) have not been complied with. This will, in the opinion of the court, not amount that the appeal against the order does not lie. The expression "where an appeal against the order lies" means that the order is appealable. There is thus clear distinction between the language employed in sections 249 and 264(4)(a) of the Income tax Act. The Commissioner has observed in his order that the revision shall not be entertained within the time within which such appeal may be made has not expired or in case of appeal to the Commissioner of Income Tax (Appeals) or to the Income Tax Appellate Tribunal, the assessee has not waived the right of appeal, has not been fulfilled in the present case. Therefore, in my view, clearly the provisions of Section 264(4)(a) of the Act were applicable. The revision was liable to be dismissed as not maintainable.

The petition is devoid of merit and the same is hereby dismissed.