Similar Issue had Arisen for Consideration in Another Year and is Pending Adjudication in Appeal or Another Forum Commissioner Cannot Refuse to Entertain a Revision Petition Filed by the Assessee Under Section 264 of the Act if it is Maintainable on the Ground

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The Tax Publishers Commissioner Cannot Refuse to Entertain a Revision Petition Filed by the Assessee Under Section 264 of the Act if it is Maintainable on the Ground that Similar Issue had Arisen for Consideration in Another Year and is Pending Adjudication in Appeal or Another Forum Akhilesh Kumar Sah Section 264 provides for revision at instance of assessee. It provides that no revision maintainable where assessee prefers appeal against the order in revision. In the case of Paradigm Geophysical Pty. Ltd. v. CIT (International Taxation) [ 2017 TaxPub(DT) 5153 (Del-HC)] the CIT declined to entertain revision petition on ground that assessee preferred appeal in similar case for another assessment year. The High Court held that each assessment year is separate and revision petition cannot be declined on ground that assessee preferred appeal for another assessment year. 1. Prologue Section 263 of the Income Tax Act, 1961 ('the Act') deals with revision by Principal Commissioner or Commissioner of the orders prejudicial to revenue and Section 264 of the Act deals with the revision of other orders. A recent decision of Delhi High Court is helpful for assessees. 2. Facts of the case In Paradigm Geophysical Pty. Ltd. v. CIT (International Taxation) W.P.(C) 6052/2017, decided on 13-11-2017 [ 2017 TaxPub(DT) 5153 (Del-HC)], briefly, the petitioner being a non-resident company and a tax resident of Australia, was engaged in the business of providing and developing software enabled solutions to the oil and gas industry andannual maintenance services in relation to the solutions supplied by it. For the assessment year 2012-13, the petitioner had filed return declaring total income of Rs. 1,97,16,140, inter alia, applying provisions of Section 44BB of the Act. Assessing Officer (AO) issued notice for scrutiny assessment and thereafter issued draft assessment order dated 5-3-2015, proposing to tax the receipts as Royalty/Fees from Technical Services. No objections were filed and consequently the final assessment order dated 11-5-2015 was passed by the assessing officer under Section144C(3)(b)/143(3) of the Act confirming the addition/adjustment proposed in the draft assessment order. Total income of petitioner for the assessment years was computed by applying Section 44DA of the Act at Rs. 4,92,90,360 as against Rs. 1,97,16,140 offered to tax by the petitioner by applying provisions of 44BB of the Act. As the petitioner had not filed any objections under Section 144C(2), recourse to sub-section (4) of Section 144C was not required. In other words, no directions were passed by the Dispute Resolution Panel ('DRP') in respect of the draft assessment order. The petitionerdid not file any appeal against the final assessment order dated 11-5-2015 passed by the assessing officer, making the aforesaid addition. SUBSCRIBE FOR FULL CONTENT

The Tax Publishers

Commissioner Cannot Refuse to Entertain a Revision Petition Filed by the Assessee Under Section 264 of the Act if it is Maintainable on the Ground that Similar Issue had Arisen for Consideration in Another Year and is Pending Adjudication in Appeal or Another Forum

Akhilesh Kumar Sah

Section 264 provides for revision at instance of assessee. It provides that no revision maintainable where assessee prefers appeal against the order in revision. In the case of Paradigm Geophysical Pty. Ltd. v. CIT (International Taxation) [ 2017 TaxPub(DT) 5153 (Del-HC)] the CIT declined to entertain revision petition on ground that assessee preferred appeal in similar case for another assessment year. The High Court held that each assessment year is separate and revision petition cannot be declined on ground that assessee preferred appeal for another assessment year.

1. Prologue

Section 263 of the Income Tax Act, 1961 ('the Act') deals with revision by Principal Commissioner or Commissioner of the orders prejudicial to revenue and Section 264 of the Act deals with the revision of other orders. A recent decision of Delhi High Court is helpful for assessees.

2. Facts of the case

In Paradigm Geophysical Pty. Ltd. v. CIT (International Taxation) W.P.(C) 6052/2017, decided on 13-11-2017 [ 2017 TaxPub(DT) 5153 (Del-HC)], briefly, the petitioner being a non-resident company and a tax resident of Australia, was engaged in the business of providing and developing software enabled solutions to the oil and gas industry andannual maintenance services in relation to the solutions supplied by it. For the assessment year 2012-13, the petitioner had filed return declaring total income of Rs. 1,97,16,140, inter alia, applying provisions of Section 44BB of the Act. Assessing Officer (AO) issued notice for scrutiny assessment and thereafter issued draft assessment order dated 5-3-2015, proposing to tax the receipts as Royalty/Fees from Technical Services. No objections were filed and consequently the final assessment order dated 11-5-2015 was passed by the assessing officer under Section144C(3)(b)/143(3) of the Act confirming the addition/adjustment proposed in the draft assessment order. Total income of petitioner for the assessment years was computed by applying Section 44DA of the Act at Rs. 4,92,90,360 as against Rs. 1,97,16,140 offered to tax by the petitioner by applying provisions of 44BB of the Act. As the petitioner had not filed any objections under Section 144C(2), recourse to sub-section (4) of Section 144C was not required. In other words, no directions were passed by the Dispute Resolution Panel ('DRP') in respect of the draft assessment order. The petitionerdid not file any appeal against the final assessment order dated 11-5-2015 passed by the assessing officer, making the aforesaid addition.