ORDER :

(Ujjal Bhuyan, J.)

1. Heard Mr. Deepak Chopra, learned counsel representing Mr. G.Narendra Chetty, learned counsel for the petitioner; Mr. B.Mukherjee, learned counsel representing Mr. Gadi Praveen Kumar, learned Deputy Solicitor General of India appearing for respondent No.1; and Mr. J.V.Prasad, learned Standing Counsel, Income Tax Department for respondent Nos.2 and 3.

2. By filing this petition under Article 226 of the Constitution of India, petitioner has assailed legality and validity of the order dated 28.03.2019 passed by the Principal Commissioner of Income Tax-6, Hyderabad i.e., respondent No.3, under Section 264 of the Income Tax Act, 1961 (briefly referred to hereinafter as ‘the Act’) and further seeks a direction to the said respondent to re-consider the claim of the petitioner for deduction under Section 80-IA of the Act.

3. Petitioner before us is a joint venture and is also an assessee under the Act having the status of joint venture. The joint venture was formed between two companies – M/s.Tata Projects Ltd. and Aldesa Construcciones, S.A. for design and construction of civil structures and track works for double line railway tracks, bridges, structures etc. For the assessment year 2014-15, it filed its return of income on 24.11.2014 declaring total income at Rs.15,18,42,010.00. By the assessment order dated 28.12.2016 passed under Section 143(3) of the Act, 2nd respondent being the assessing officer assessed the total income of the petitioner at Rs.15,18,42,010.00.

4. On 01.02.2018, petitioner submitted an application before respondent No.3 under Section 264 of the Act seeking revision of the assessment order. It was pointed out that assessee had commenced its business operations during the previous year 2013-14 and accordingly assessment year 201415 is the first year under assessment. Assessee pointed out that it is entitled to claim deduction under Section 80-IA of the Act. However, because of a bona fide error, the same was not claimed either at the time of filing the return of income or during the assessment proceeding. It is in such circumstances that petitioner filed the application before the 3rd respondent under Section 264 of the Act. Petitioner also pointed out that the application was delayed by 52 days and sought for condonation of delay.

5. By the order dated 28.03.2019, 3rd respondent condoned the delay and took up the case for revision. After adverting to Section 80-IA(1) and (2) of the Act, 3rd respondent observed that assessee did not opt to make the claim of deduction and without making any such claim, had filed the return of income. In the subsequent assessment year i.e., assessment year 2015-16 also, petitioner has not made the said claim before the assessing officer. 3rd respondent opined that petitioner in its wisdom had chosen not to claim the deduction under Section 80-IA of the Act. Therefore, he declined to interfere in the decision of the assessing officer under Section 264 of the Act.

6. Aggrieved, present writ petition has been filed seeking the relief as indicated above.

7. Respondent No.3 has filed counter affidavit reiterating the decision taken on 28.03.2019, to which petitioner has filed rejoinder affidavit.

8. In the hearing today, learned counsel for the petitioner has drawn the attention of the Court to the application filed by the petitioner under Section 264 of the Act as well as to the order passed by the 3rd respondent on 28.03.2019 dismissing the revision application of the petitioner. He submits that 3rd respondent was not justified in rejecting the application of the petitioner; instead he ought to have considered the claim of the petitioner under Section 80-IA of the Act on merit. Refusal to do so has caused great prejudice to the petitioner, which needs to be rectified.

9. Learned counsel for the petitioner has referred to a compilation containing various judgments to support his case. In particular, he has referred to the decision of the Bombay High Court