DEBANGSU BASAK,J. - (1.) Four orders under Section 264 of the Income Tax Act, 1961 for the assessment years 2004-05 to 2007-08 are under challenge in the present writ petition.
(2.) Learned senior advocate for the petitioner submits that, his client had purchased certain plants and machineries. His client had included the CENVAT Credit in respect of such purchase as income in its profit and loss account. It had proceeded to offer tax on income on such basis for the first assessment year. In the subsequent years, it had proceeded to claim depreciation on the basis of the cost of plant and machinery inclusive of the CENVAT Credit. He submits that, his client had committed this mistake over a period of five assessment years. Subsequently, the Excise Authorities took exception to the treatment of the accounts in the manner so done by the petitioner. The petitioner was then put on notice that there was a mistake in the treatment of the accounts. Finding that, one of the assessment years was within the period of limitation under Section 139 (5), the petitioner filed a revised return before the assessing authority. The assessing authority accepted the reworking in respect of such revised return. For the balance four assessment years which are the subject matter of the present writ petition, the petitioner had applied under Section 154 before the assessing authority. The initial application was dated March 24, 2010. The assessing officer on receipt of such application requested the petitioner to make another application. In deference to such wishes, his client submitted another application on April 12, 2010. The second application dealt with the depreciation portion only. The assessing officer proceeded to allow the rectification of the depreciation as claimed by the petitioner. The assessing officer however did not deal with the rectification on the quantum of income. This fact was pointed out to the assessing officer. The assessing officer refused to entertain such request. Aggrieved thereby, the petitioner applied under Section 264 of the Act of 1961. By the four separate impugned orders, the Commissioner negated such applications under Section 264 .
(3.) Learned senior advocate for the petitioner refers to the four impugned orders and submits that, the impugned orders are premised primarily upon three grounds. The first ground of rejection by the Commissioner is that, the petitioner did not apply for the two reliefs. He submits that, the Commissioner had failed to take into account the prayer contained in the initial application dated March 24, 2010. According to him, the application dated March 24, 2010 is a composite application dealing with both the corrections with regard to income as also depreciation. Secondly, he submits that, the Commissioner had misconstrued the proceedings under Section 264 of the Act of 1961, when he returns a finding that, a petition under Section 264 would not allow against the order of assessment. He refers to Section 264 of the Act of 1961 and submits that, no order other than the order passed under Section 263 is revisable before him under Section 264 under the Act of 1961. So far as the point of limitation noted in the impugned orders is concerned, learned senior advocate for the petitioner refers to the respective date of the making of the application before the assessing officer, the order passed by the assessing officer impugned before the Commissioner and submits that, the impugned order of the assessing officer was within the period of limitation envisaged under Section 264 under the Act of 1961. The department is represented.;