Allahabad H.C : Heard Shri Rakesh Ranjan Agarwal, the learned counsel for the revisionist and Shri Ashok Kumar, the learned standing counsel appearing for the opposite party.

High Court Of Allahabad

Arun Kumar Jain vs. CIT

Section 264

Asst. Year 1995-96

P.K. Jain, J.

Civil Misc. Writ Petn. No. 226 of 2000

7th March, 2000

Counsel Appeared

Rakesh Ranjan Agarwal, for the Applicant : Ashok Kumar, for the Respondents

JUDGMENT

P.K. JAIN, J.

Heard Shri Rakesh Ranjan Agarwal, the learned counsel for the revisionist and Shri Ashok Kumar, the learned standing counsel appearing for the opposite party.

By the present writ petition the petitioner challenges the order dt. 31st Dec., 1999, and prays for quashing the same on the ground that the CIT, Meerut, has wrongly held that the revision was not maintainable.

The brief facts appear to be that against the assessment order for the asst. yr. 1995-96 the petitioner filed an appeal under s. 249 of the IT Act, 1961 (‘the Act’). He had not deposited the income-tax due on income returned by him. Feeling that the appeal shall not be admitted in view of the provisions contained in s. 249(4) he withdrew the appeal and thereafter filed revision under s. 264 of the Act. The CIT dismissed the said revision being not maintainable in view of the provisions contained in s. 264(4)(a) of the Act.

The submission of Shri Agarwal, the learned counsel for the petitioner, is that in view of the circular dt. 26th July, 1983, issued by the CIT the appeal which has been withdrawn shall not be treated to have been made the subject of an appeal.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 CIT is against the law. Shri Ashok Kumar, has, however, pointed out that the revision has been dismissed under the provisions of s. 264(4)(a) of the Act. Sec. 249(4) 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.” Bare perusal of the above clauses of s. 249(4) would show that they do not provide with regard to the maintainability of the appeal. Clause (a) of s. 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. Sec. 264(4) bars the revision in three contingencies. Under cl. (a) of s. 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 CIT(A) or to the Tribunal the assessee has not waived his right of appeal. The second contingency is that where the order is on an appeal pending before the Dy. CIT(A) and the third contingency is that where the order has been made the subject of an appeal to the CIT(A) or to the Tribunal. The distinction between the provisions of cl. (a) and cl. (c) of s. 264(4) is that under cl. (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 cl. (a) of sub-s. (4) of s. 264 the revision shall not lie whereas under cl. (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 cl. (c) of s. 264(4) of the 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-s. (4)(a) of s. 264 was where an appeal against the order lies. There is a distinction between the language used in ss. 249 and 264(4)(a) of the Act. Sec. 249 prohibits the authority concerned from admitting an appeal in case conditions provided under s. 249(4)(a) have not been complied with. This will, in the opinion of the Court, not mean 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 ss. 249 and 264(4)(a) of the IT Act. The CIT has observed in its 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 CIT(A) or to the 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 s. 264(4)(a) were applicable. The revision was liable to be dismissed as not maintainable.

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

[Citation : 247 ITR 492]

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