Judgment:
R.K. Abichandani, J.
Rule. Learned advocate Mr. B.B. Naik waives service of rule on behalf of the respondent. The petition is heard finally at the instance of both sides since it involves a very short point.
2. The grievance of the petitioner is that the Commissioner-II, Surat, has rejected the petitioners application by the impugned order, dated 19-3-2001, for restoring the revision application to file. It is submitted that the authorities have been ignoring a Division Bench judgment of this court in CIT v. Harsidh Construction (P) Ltd. (2000) 16 DTC 152 (Guj) : (2000) 242 ITR 417 in which it was held that when tax deducted at source under the provisions of section 194C of the Act was deposited in the government account well within prescribed time and there was no loss of revenue, but only a failure to forward the certificate, the Tribunal was justified in cancelling the penalty under section 272A(2)(g) of the Act in view of the bona fide mistake on the part of the assessee. It is stated that the SLP preferred against this decision of the High Court was rejected by the Supreme Court which fact is in (2001) 252 ITR 60.
3. It appears from the record that even when the earlier revision was rejected on 5-2-2001, the matter was not considered on merits and it appeared that the assessee did not intend to pursue the matter. Now, the assessee has pointed out that the director of the company looking after income-tax matters was out of station and, therefore, the matter could not be attended to. In view of the decision of this court in Harsidh Construction (P) Ltd. (supra), the Commissioner-II, Surat, should have considered the matter on merits instead of rejecting the application for restoring the revision application on the ground that there was no error apparent from the record for rectifying the earlier order. In fact, no order on merits was made, so there was no question of rectifying any order and the Commissioner overlooked the fact that the earlier order was virtually an order dismissing the revision application for default and therefore, the real question was whether that should be restored to file and be heard on merits.
4. In this view of the matter, it would be in the interest of justice to direct the Commissioner-II, Surat to hear the revision application of the petitioner on merits. The impugned orders, dated 19-3-2002, at Annexure 'I' and dated 5-2-2001, at Annexure 'D' are hereby set aside with a direction to the Commissioner to hear the revision application on merits and dispose it of in accordance with law. Rule is made absolute accordingly with no order as to costs.