PAREK BROTHERS Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) The judgment of the Court was delivered by Paripoornan, J. - The petitioner is an assessee to Income Tax borne on the files of the 3rd respondent - the Income Tax Officer, A-Ward, Circle I, Calicut. In this Original Petition, Exts. P-1, P-3 and P-5 orders of respondents 3, 2 and 1 respectively are challenged. The 1st respondent is the Commissioner of Income Tax, Kerala II, Ernakulam, the 2nd respondent is the Appellate Assistant Commissioner of Income Tax Calicut Range, Calicut and the 3rd respondent is the Income Tax Officer, A-Ward, Circle I, Calicut. The final order is the one passed by the 1st respondent, evidenced by Ext. P-5, dated 5th May 1978. The short question that arises for consideration is the scope of the revisional power of the 1st respondent under S.264 of the Income Tax Act, 1961.

(2.) This Original Petition is coming up before us on a reference made by our learned brother, P. C. Balakrishna Menon, J. by his order of reference, dated 15th December, 1981.

(3.) The short facts necessary to adjudicate the controversary in this case are as follows: The petitioner firm carries on business in the export of goods to foreign countries. It is an assessee borne on the files of the 3rd respondent. In respect of the exports, the petitioner claims weighted deduction under S.35B of the Act. For the assessment year 1975-76 the return filed by the petitioner was substantially accepted by the 3rd respondent by order dated 24th July 1976, evidenced by Ext. P-1. Against certain deductions disallowed by the assessing authority, the petitioner filed an appeal before the 2nd respondent and he allowed the appeal in part by Ext. P-3 order dated 8th June, 1977. Subsequent to this, the petitioner discovered that it had inadvertently omitted to make a claim for deduction which it was entitled to under S.35B of the Act. Immediately, an application was filed before the 3rd respondent on 6th September 1977 seeking rectification of the assessment under S.154 of the Act, to afford deduction under S.35B of the Act in a sum of Rs. 1,43,474. It should be stated that such a claim was not made either in the return or at the time of arguments when the assessment was made. Since the request made by the petitioner was not acceded to by the 3rd respondent, the petitioner filed a revision dated 30th September 1977 (Ext. P-4) before the 1st respondent. It is common ground that this particular deduction, weighted deduction under S.35B of the Act - was not the subject matter of appeal before the 2nd respondent when Ext. P-3 rendered. Along with the revision petition the petitioner made a prayer to condone the delay in filing the revision.