The court established that an intimation under Section 143(1) of the Income Tax Act is revisable under Section 264, and the Commissioner cannot decline jurisdiction based solely on the existence of an appeal.

JUDGMENT :

(M.S. Sonak J.)

1. Heard learned Counsel for the parties.

2. Rule. The rule is made returnable immediately at the request of and with the consent of learned Counsel for the parties.

3. This Petition is concerned with the assessment year 2014-2015.

4. By instituting this Petition, the Petitioner challenges the impugned intimation under Section 143 (1) of the Income Tax Act, 1961 (Exhibit-D) and the impugned order dated 12 February 2021, made by the commissioner under Section 264 of the I.T Act, 1964 dismissing the petitioner’s revision against the impugned intimation dated 8 July 2013.

5. Upon reviewing the impugned order dated 12 February 2021, we find that the commissioner has effectively declined to exercise revisional jurisdiction on the following two grounds:

A.- because the Petitioner has an alternate remedy of instituting an Appeal against the impugned intimation dated 8 July 2015.

B- because intimation dated 8 July 2015 under Section 143 (1) of the IT Act, 1961 is not an ‘order’ revisable under Section 264 of the IT Act.

6. Regarding the first ground, we refer to the provisions of Section 264 of the IT Act, 1961, in which no such limitation is to be found or based on which the commissioner could have declined to exercise its revisional jurisdiction. Coordinate Bench, in the case of Aafreen Fatima Fazal Abbas Sayed Vs. Assistant Commissioner of Income Tax , Circle 23(1), Mumbai, (2021)127 Taxmann. Com 819 (Bombay), in similar circumstances where the commissioner had declined to exercise revisional jurisdiction because the order was appealable and the assessee had chosen not to institute an Appeal, held that revision authority could not have refused to exercise its revision jurisdiction on such a ground.

7. The discussion relevant to the above issue in paragraph 19, 20 and 21 is transcribed below for the convenience of reference:-

“….19. What is relevant for our purposes is section 264 (4)(a) of the Income Tax Act. Under this section, the Principal Commissioner is mandated not to revise any order in two situations: first where an appeal that lies to the Commissioner (Appeals) but has not been made and the time within which such appeal may be made has not expired or second, where the assessee has not waived his right of appeal. What emerges is that in a situation where there is an appeal that lies to the Commissioner appeals and which has not been made and the time to make such an appeal has not expired in that case the Principal Commissioner or Commissioner cannot revise any order in respect of which such appeal lies. The language is quite clear that the two conditions are cumulative viz: there should be an appeal which lies but has not been made and the time for filing such appeal has not expired in such a case the Principal Commissioner cannot revise. However, if the time for making such an appeal has expired then it would be imperative that the Principal Commissioner would exercise his powers of revision under section 264. The other or second situation is when the Petitioner assessee has not waived his right of appeal; even in such a situation the Commissioner cannot exercise his powers of revision under section 264 (4) (a). In clause (a) of section 264 (4), in the language between filing of an appeal and the expiry of such period and the waiver of the 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. Therefore, 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 the Principal Commissioner to exercise his powers of revision under section 264 not only that the time for filing