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Before: Shri Abraham P. George & Shri Duvvuru RL Reddy
O R D E R
PER DUVVURU RL REDDY, JUDICIAL MEMBER:
This appeal filed by the assessee is directed against the order of the ld. Commissioner of Income Tax (Appeals) 13, Chennai dated 09.05.2016 relevant to the assessment year 2005-06. The effective ground raised in the appeal of the assessee is that the ld. CIT(A) has erred in sustaining the order passed under section 264 of the Income Tax Act, 1961 [“Act” in short] and dismissing the appeal filed by the assessee.
Brief facts of the case are that the assessee filed return of income on 09.06.2006 admitting total income of ₹.13,55,020/- and the same was accepted by the Assessing Officer. Later on information was received from the ITO, Salary Ward II(4), Chennai about Shri C.K. Theerthagiri regarding the sale of lands during the financial year 2004-05 which were claimed as agricultural but revealed as urban lands on enquiry and as capital gains arises on account of sale of immovable property by the assessee along with four others (Smt. P. Dhanalakshmi, the assessee herein, is co-owner (1/5th share) in the connected case of Shri C.K. Theerthagiri), proceedings under section 147 of the Act were initiated. Based on revised return filed by the assessee, the assessment was completed under section 143(3) r.w.s. 147 of the Act assessing the income at ₹.62,40,724/- raising a demand of ₹.9,03,550/-. Aggrieved, the assessee filed petition for revision under section 264 of the Act quoting the case of Smt. Sasikala legal heir of late C.K. Ramachandran (original owner of the property) in which ITAT passed an order on 14.02.2014 treating the land as agricultural land and requested for revision under section 264 of the Act. Against the petition under section 264 of the Act, the ld. CIT dismissed the revision petition vide his order dated 18.07.2014.
Aggrieved, the assessee carried the matter in appeal before the ld. CIT(A) against the order of 143(3) r.w.s. 147 of the Act and filing copy of the revision order under section 264 of the Act passed by the ld. CIT. Since the revision petition filed by the assessee and the ld. CIT dismissed the same, the appeal preferred by the assessee was dismissed by the ld. CIT(A).
On being aggrieved, the assessee is in appeal before the Tribunal challenging the appellate order. The ld. Counsel for the assessee has submitted that the assessee has filed a revision petition under section 264 of the Act before the ld. CIT and appeal before the ld. CIT(A). It was further submission that the ld. CIT dismissed the revision petition without considering the decision of the Tribunal in co-owners case and moreover, the ld. CIT has not afforded any opportunity of being heard to the assessee before passing the revision order on the ground that the Department preferred further appeal before the Hon’ble High Court. It was further submission of the ld. Counsel that the ld. CIT(A) also dismissed the appeal of the assessee following the order of the jurisdictional CIT and prayed to set aside the order of the ld. CIT(A) since the issue is covered in favour of the assessee by the orders of the Tribunal in co-owner’s case.
On the other hand, the ld. DR has submitted that the assessee preferred a revision petition before the ld. CIT under section 264 of the Act. Accordingly, the ld. CIT disposed of the revision petition and therefore the assessee preferred the appeal before the ld. CIT(A). The ld. DR further submitted that the assessee is precluded to prefer a revision petition under section 264(4)(a) of the Act until she waives the right of appeal. He further argued that once the assessee waives the right of preferring an appeal, then only the revision lies. Since the assessee preferred revision petition before the ld. CIT and appeal before the ld. CIT(A), he submitted that the ld. CIT(A) has rightly dismissed the appeal filed by the assessee. It was also the submission that if at all there is any grievance against the revision order, the assessee is entitled to file a writ petition before the Hon’ble High Court against order under section 264 of the Act, but, not before the ld. CIT(A) or the ITAT.
We have heard both the sides, perused the materials available on record and gone through the orders of authorities below including written submissions along with enclosures filed by the assessee. In this case, against the assessment order passed under section 143(3) r.w.s. 147 of the Act dated 05.03.2013, assessee has preferred a petition under section 264 of the Act before the ld. CIT as well as appeal before the ld. CIT(A). We have gone through the provisions of section 264 of the Act. The language used in the provisions of section 264(4) of the Act is reproduced hereunder for the sake of clarity: “Section 264: (4) The Commissioner shall not revise any order under this section in the following cases— (a) where an appeal against the order lies to the Deputy Commissioner (Appeals) or to the Commissioner (Appeals) or to the Appellate Tribunal but has not been made and the time
within which such appeal may be made has not expired, or, in the case of an appeal to the Commissioner (Appeals) or] to the Appellate Tribunal, the assessee has not waived his right of appeal; or (b) where the order is pending on an appeal before the Deputy Commissioner (Appeals); or (c) where the order has been made the subject of an appeal to the Commissioner (Appeals) or to the Appellate Tribunal.” 6.1 In the present case in hand, after careful consideration of the above provisions, we have no hesitation to say that when once the assessee extinguishes her right of filing of the appeal, then only the revision petition before the ld. CIT lies or if an order is not appealable one, the revision lies. In this case, the assessment order passed under section 143(3) r.w.s. 147 of the Act is an appealable order. When the assessee preferred revision petition under section 264 of the Act before the ld. CIT and the ld. CIT has passed the revision order dated 18.07.2014, it presume that she has waived her right of appeal before the ld. CIT(A). That means, the assessee cannot travel in two boats at a time. The assessee is not entitled to prefer an appeal within the stipulated period of filing of appeal once revision petition has been preferred by the assessee. Therefore, we are of the considered opinion that the appeal filed by the assessee before the ld. CIT(A) is not maintainable and the ld. CIT(A) has rightly dismissed the appeal since ld. CIT has passed his revision order under section 264 of the Act. The remedy against the revision order passed under section 264 of the Act, whatsoever claims by the assessee lies only before the Hon’ble Jurisdictional High Court by way of writ petition. Once the assessee extinguishes the jurisdiction in filing the appeal, we are not inclined to adjudicate the issue on merits. Thus, the ground raised in the appeal filed by the assessee stands dismissed.
In the result, the appeal filed by the assessee is dismissed. Order pronounced on the 14th February, 2019 at Chennai.