The main legal point established in the judgment is that the rejection of the application for revision under Section 264 was erroneous in law, and the claim of the petitioner under Section 10(38) should be accepted subject to the claim being in order.

JUDGMENT

(Prayer: Writ Petition filed under Article 226 of the Constitution of India, to issue aWrit of Certiorarified mandamus calling for the records of the 1st respondent in C.No.217/264/Pr.CIT-1/2017-18 and quash the impugned order dated 07.02.2019 and direct the 1st respondent in PAN:AAWFS0763Q pertaining to the assessment year 2012-13 for granting the deduction/tax exemption U/s.10(38) of the Act in the computation of taxable total income.)

1. The petitioner challenges order dated 07.02.2019, passed by the Principal Commissioner of Income Tax/R1 rejecting an application for revision filed under Section 264 of the Income Tax Act, 1961 (in short 'Act') for assessment year 2012-13 filed on the ground of delay as well as on the merits of the matter.

2. The petitioner had filed a return of income within time wherein it claims to have inadvertently failed to seek exemption under Section 10 (38) of the Act in respect of shares sold in the stock exchange through recognised stock exchange brokers.

3. In fact, the claim of exemption, according to the petitioner, is in order insofar as the required security transaction tax has been paid and hence the entire capital gain is exempt in terms of the aforesaid provision.

4. On account of the aforesaid inadvertent error, a revision petition was filed before R1 on 09.02.2013. The petition was accompanied by an application for condonation of delay, that also bears a seal of receipt by the office of R1.

5. The respondent, in the impugned order, rejects the application for revision on the ground that no condonation has been sought, which conclusion is factually incorrect.

6. Not content with the conclusion on the aspect of delay, R1 also proceeds to reject the claim on merit, making reference to the judgment of the Hon'ble Apex Court in the case of Goetze (India) Ltd. Vs. Commissioner of Income Tax, [(2006) 157 Taxman 1].

7. I am of the considered view that reliance upon the aforesaid judgment is misconceived. That judgment refers to the power of an assessing officer or the lack thereof to consider an amendment to a return of income, sought by way of a letter in the course of assessment proceedings, without filing of a revised return.

8. In fact, even in Goetze (India) Ltd. (supra), the Apex Court makes a distinction between the powers of the assessing authority and that of superior authorities, clarifying at paragraph 6 the judgement, that the restriction placed upon the powers of an assessing authority, would not extend to, or impinge upon, the powers of the Income Tax Appellate Tribunal.

9. I have had an occasion to consider an identical issue sitting in the Tax Bench of this Court in Sri Selvamuthukumar Vs. Commissioner of Income Tax, Chennai, [(2017) 79 taxmann.com 113]. The facts in that case are similar to the present case, insofar as it deals with the power of Commissioner under Section 264 to cause enquiry in regard to claim made by an assessee.

10. The contention of the learned Standing Counsel for the Department as captured in para 12 of that order is identical to the stand taken by R1 now and is extracted below:

12. Mr. Swaminathan would submit that the appellant ought to have filed a revised return under section 139(5) since there was sufficient time available and not having done so, he cannot seek remedy under section 264 of the Act. He would urge that both reliefs cannot run concurrently and one can be availed of only when the other is exhausted as otherwise an assessee who misses the time limit for filing a revised return would take recourse to the provisions of section 264 and seek a revision.

11. That stand came to be rejected and at para 13,to following effect:

13. The relief provided in terms of section 139(5) is specific to the correction of a wrong statement or an omission in the original return by way of a revised return. The power under section 264 of the Act extends to passing any order as the Principal Commissioner or Commissioner may think fit after making an inquiry and su