M/S. GULF GOANS HOTELS CO.LTD vs. COMMISSIONER OF INCOME TAX GOA-PANAJI

1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.

154 AND 166 OF 2010.

WRIT PETITION NO.

154 OF 2010

M/s. Gulf Goans Hotels Co.Ltd. 207/208, Citi Centre 2nd Floor, Patto Plaza, Panaji Goa. .. Petitioner. V e r s u s 1. Commissioner of Income Tax Goa-Panaji No.5 Patto Ayekar Bhavan, Panaji-403001. .. Respondent WITH WRIT PETITION NO.

166 OF 2010.

M/s. Gulf Goans Hotels Co.Ltd. 207/208, Citi Centre 2nd Floor, Patto Plaza, Panaji Goa. .. Petitioner. V e r s u s 1. Commissioner of Income Tax Goa-Panaji No.5 Patto Ayekar Bhavan, Panaji-403 001. .. Respondent Mr. D. E. Robinson, Advocate for the petitioner. Mrs. Asha Dessai, Advocate for the respondent. CORAM : A. P. LAVANDE, J.

Date : 14 th January, 2011.

ORAL JUDGMENT : Rule. By consent of learned Counsel for the

2 parties heard forthwith. 2. Both these petitions are being disposed of by a common order since the issues involved in both the petitions are identical and the parties are also the same. 3. By these petitions under Article 227 of the Constitution of India, the petitioner challenges two orders dated 29th October, 2009 and 28th October, 2009 passed by the respondent refusing to condone the delay of 10 years and 153 days in preferring revision under Section 264 of the Income Tax Act, 1961 ('The Act' for short) against the orders dated 27th June, 1997 passed by the Assistant Commissioner of Income Tax, Circle No. I seeking revision of assessment under Section 143(3) of the Act. 4. According to the petitioner, they did not seek remedy under Section 264 immediately on the receipt of retrospective approval as the petitioner was advised that till the issue was settled, the petitioner should not seek revision of the assessment. On this ground, the petitioner sought condonation of delay of 10 years and 153 days in preferring revision before the respondent under Section 264 of the Act.

3 5. Perusal of the impugned orders disclose that in paragraph 9 of the impugned order dated 29th October, 2009 and paragraph 10 of the impugned order dated 28th October, 2009, the respondent has stated that the fact of pendency of penalty proceedings under section 271(1)(c) before the appellate authorities could not be considered as sufficient cause to prefer the application under Section 264 for revision of the assessment order passed under Section 143(3) within time. The respondent was bound to consider the reason stated in the application seeking condonation of delay that the petitioner was advised not to approach till the proceedings reached finality and whether the petitioner was justified in waiting for the final decision in the matter. This aspect of the matter has not been considered by the respondent. On this ground alone, the impugned orders dated 29th October, 2009 and 28th October, 2009 passed by the respondent are liable to quashed and set aside. 6. In view of the above position, the impugned orders dated 29th October, 2009 and 28th October, 2009 passed by the respondent are quashed and set aside and the respondent is directed to decide the applications seeking condonation of delay afresh and pass speaking order considering all the contentions raised by the petitioner in

4 accordance with law. The petitioner either himself or through his representative to appear before the respondent on 28th February, 2011 at 11.00 a.m. 7. Rule is made absolute in aforesaid terms with no order as to costs. A. P. LAVANDE, J. SMA