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Sri Balachandra Fertilizers Vs. Income-tax Officer and anr. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petition No. 997 of 1976
Judge
Reported in[1979]120ITR182(AP)
ActsIncome Tax Act, 1961 - Sections 264 and 264(3)
AppellantSri Balachandra Fertilizers
Respondentincome-tax Officer and anr.
Appellant AdvocateS. Dasaratharama Reddy, Adv.
Respondent AdvocateP. Rama Rao, Adv.
Excerpt:
.....was vitiated by delay - return of original revision petition received by other partner and by that time firm was dissolved - plaintiff was not informed of return - petitioner was trying to revive original petition by curing defects therein - revision petition filed second time was only reiteration of original petition - direction issued to commissioner to entertain revision petition filed by petition. - - we have already given the substance of the accompanying letter sent by the present petitioner on 30th january, 1975, the contents of the letter would clearly show that the petitioner was trying to revive the original petition by curing the defects therein. we are, therefore, satisfied that the commissioner was not right in treating the petition sent on 30th january, 1975, as a..........between the two partners in the meanwhile with the consequence that subbayya--one of the partners--filed a revision petition under section 264 of the i.t. act on 15th november, 1973. that was returned to him on 5th december, 1973, with the requirement that court-fee stamp should be affixed thereto. subbayya did not re-present it. after coming to know that his partner had not re-presented the revision petition, veeraiah--who has now filed the writ petition--submitted another revision petition with court-fee stamp. this was rejected by the commissioner on the ground that the second petition was vitiated by delay of eight months and consequently the revision petition could not be entertained. the result is that the commissioner refused to entertain the revision petition on the ground that.....
Judgment:

Sambasiva Rao, C.J.

1. This is a petition filed by an assessee-firm represented by one of its partners seeking a writ of certiorari to quash the order of the ITO, Nandyal, dated 30th November, 1972, as confirmed by the CIT, by his order dated 18th July, 1975, and to direct the Commissioner, who is impleaded as the second respondent, to entertain the revision petition. We are inclined to grant this writ petition.

2. We will now give our reasons for the same. The firm consisted of two partners. For the assessment year 1970-71, the firm submitted a return showing a loss of Rs. 3,500. The ITO, however, rejected the return showing the loss and determined that the firm had gained a profit of Rs. 25,000 during the relevant year. The date of his order was 30th November, 1972. By this time, differences arose between the two partners and the firm was dissolved. The partners consequently refused to receive the copies of the order. On 3rd April, 1973, Veeraiah--who has now filed the writ petition--filed an application for a copy, of the order. That was given to him on 30th October, 1973. Evidently, some sort of understanding was reached between the two partners in the meanwhile with the consequence that Subbayya--one of the partners--filed a revision petition under Section 264 of the I.T. Act on 15th November, 1973. That was returned to him on 5th December, 1973, with the requirement that court-fee stamp should be affixed thereto. Subbayya did not re-present it. After coming to know that his partner had not re-presented the revision petition, Veeraiah--who has now filed the writ petition--submitted another revision petition with court-fee stamp. This was rejected by the Commissioner on the ground that the second petition was vitiated by delay of eight months and consequently the revision petition could not be entertained. The result is that the Commissioner refused to entertain the revision petition on the ground that there was delay of eight months. 'Thereupon the present writ petition has been filed seeking the reliefs which we have mentioned above.

3. While sending up the petition a second time the present writ petitioner undoubtedly termed the petition ' Second time filing of petition under Section 264(3) of the Income-tax Act--regarding'. Having stated that, he averred in the letter accompanying the second petition that, for the first time, the petition was filed under Section 264(3) on 15th November, 1973, with a challan for Rs. 25. The petition was returned to another partner for not affixing two rupees court-fee stamps. By that time, the firm had already been dissolved on account of some misunderstandings. The other partner who had received the return did not inform the present writ petitioner. Consequently, the petitioner was obliged to file the petition again for the second time with the necessary court-fee stamp.

4. It is true that the petitioner himself referred to his petition sent on 30th January, 1975, as second petition, but what we will have to look into is the substance of the matter and not the nomenclature that has been given to it. We have already given the substance of the accompanying letter sent by the present petitioner on 30th January, 1975, The contents of the letter would clearly show that the petitioner was trying to revive the original petition by curing the defects therein. The attempt was to have the revision sent up on 15th November, 1973, considered in accordance with law. Consequently, we are of the opinion that the petition sent on 30th January, 1975, was only reiteration of the petition sent on 15th November, 1973, and was an attempt for its revival. In substance, the second is not an independent petition by itself. We are, therefore, satisfied that the Commissioner was not right in treating the petition sent on 30th January, 1975, as a fresh petition and, on that assumption, coming to the conclusion that there was a delay of eight months.

5. Since the one sent up on 30th January, 1975, is only a reiteration of the earlier petition which was in time, we set aside the order of the Commissioner--second respondent--and direct him to entertain the same and dispose it of on its merits and in accordance with law.

6. The writ petition is thus allowed. There will be no order as to costs.


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