(Prayer: Petition filed under Article 226 of the Constitution of India, praying for a Writ of Certiorari, calling for the records of the first respondent, Commissioner of Income Tax Chennai VI, Chennai in his file C.No.6501(23)/2011-12/VI, and quash the impugned order, dated 24.7.2012.)
ORDER
1. Heard the learned counsel appearing for the petitioner, as well as the learned counsel appearing on behalf of the respondents.
2. This writ petition has been filed praying that this Court may be pleased to call for and quash the order of the first respondent, dated 24.7.2012, for rejecting the request of the petitioner for withdrawing his Revision Petition, under Section 264 of the Income Tax Act, 1961.
3. The petitioner has stated that the first respondent, after rejecting the petition submitted by the petitioner, for the withdrawal of the revision petition, had passed an order on merits. The first respondent had stated that the assessee had requested for the withdrawal of the petition, under Section 264 of the Income Tax Act, 1961, only after a substantial part of the enquiry had been completed by the Assessing Officer/Joint Commissioner of Income Tax and Commissioner of Income Tax and during such enquiry it had been found that the investment made by the assessee was in a vacant land, which makes the assessee ineligible for the exemption. The petitioner has stated that, in such circumstances, the impugned order of the first respondent is arbitrary, contrary to law and against the principles of natural justice. Hence, the said order is liable to be set aside.
4. A counter affidavit had been filed on behalf of the first respondent denying the allegations made by the petitioner, in the affidavit filed in support of the writ petition. It had been stated that the request of the petitioner for withdrawal of the Revision Petition, under Section 264 of the Income Tax Act, 1961, had not been granted, as the petitioner had filed a Revision Petition waiving his right to file a first appeal before the Commissioner of Income Tax (Appeals), by his letter, dated 6.3.2012. Further, after conducting enquiries through the Assessing Officer/Joint Commissioner of Income Tax, it had been proved that the petitioner is not eligible for the relief under Sections 54 and 54F of the Income Tax Act, 1961. In such circumstances, the petitioner had wanted to withdraw the Revision Petition. Such an act of the petitioner is not bona fide in nature.
5. It had also been stated that the Apex Court, in Rai Bahadur Vs. CIT 66 ITR 443 (SC) and D.N.Bhattacharya Vs. CIT (1998 ITR 461), had held that once the law is set in motion the same cannot be withdrawn by the assessee, unilaterally, without the permission of the appellate authority. Therefore, the rejection of the request of the petitioner, for the withdrawal of the Revision Petition, is sustainable in the eye of law.
6. In the rejoinder filed by the petitioner it has been stated that the request of the petitioner to withdraw the Revision Petition, under Section 264 of the Income Tax Act, 1961, to pursue the matter, by way of an appeal, before the Commissioner of Income Tax (Appeals), is permitted by law and that it is legitimate and bona fide in nature. It had been further stated that the decision of the Supreme Court, in Rai Bahadur Vs. CIT 66 ITR 443 (SC) and D.N.Bhattacharya Vs. CIT (1998 ITR 461), is in relation to procedural matters, before the Income Tax Settlement Commissioner, under Chapter XIX A of the Income Tax Act, 1961, and it has no relevance to the issue arising for the decision of this Court, in the present writ petition. Similarly, the decision of the Supreme Court, in CIT Vs. Nirbheram Daluram (1997) 224 ITR 610 (SC) deals with the appellate powers conferred on the Appellate Assistant Commissioner, under Section 251 of the Act and therefore, it has no relevance to the present case. It has also been stated that this Court, in CIT VS. D.Lakshminarayanapathi, 250 ITR 187 (Mad), had held that the assessee invoking the revisional jurisdiction cannot constitute a bar to the filing of an appeal.
7. In view of the submissions made on behalf of the petitioner, as well as the respondents, and on a perusal of the records available, and in view of the decisions cited supra, it is noted that the filing of a Revision Petition cannot be a bar for the filing of an Appeal, by the assessee, before the appropriate authority, as per the relevant provisions of law. In such circumstances, this Court finds it appropriate to set aside the impugned order of the first respondent, dated 24.7.2012. Accordingly, the writ petition stands allowed. It is made clear that it would be open to the petitioner to file an appeal, before the Commissioner of Income Tax (Appeals), challenging the order of the assessing officer, relating to the assessment year 2009-2010, if so advised, in the manner known to law. Consequently, connected miscellaneous petitions are closed.