COMMISSIONER OF INCOME TAX, CHENNAIversusMOHAMMED MEERAN SHAHUL HAMEED

758                      [2021]REPORTS
               SUPREME COURT    8 S.C.R. 758               [2021] 8 S.C.R.


A           THE COMMISSIONER OF INCOME TAX, CHENNAI
                                        v.
                MOHAMMED MEERAN SHAHUL HAMEED
                         (Civil Appeal No.6204 of 2021)
B                             OCTOBER 07, 2021
                  [M.R. SHAH AND A.S. BOPANNA, JJ.]
            Income Tax Act, 1961 – s.263 – Revision order passed under
      – When not barred by period of limitation provided u/s.263(2) –
      Held: Once it is established that the order u/s.263 was made/passed
C
      within the period of two years from the end of the financial year in
      which the order sought to be revised was passed, such an order is
      not beyond the period of limitation prescribed u/s.263(2) – Receipt
      of the order passed u/s. 263 by the assessee has no relevance for
      the purpose of calculating the period of limitation provided u/
D     s.263(2) – On facts, order passed by Commissioner u/s.263 was
      within the period of limitation prescribed u/s.263(2) – Interpretation
      of Statutes.
            Allowing the appeal, the Court
             HELD: 1.1 On a fair reading of sub-section (2) of Section
E     263, Income Tax Act, 1961 as mandated by sub-section (2) of
      Section 263 no order under Section 263 of the Act shall be “made”
      after the expiry of two years from the end of the financial year in
      which the order sought to be revised was passed. Therefore the
      word used is “made” and not the order “received” by the
F     assessee. Even the word “dispatch” is not mentioned in Section
      263 (2). Therefore, once it is established that the order under
      Section 263 was made/passed within the period of two years from
      the end of the financial year in which the order sought to be
      revised was passed, such an order cannot be said to be beyond
      the period of limitation prescribed under Section 263 (2) of the
G     Act. Receipt of the order passed under Section 263 by the
      assessee has no relevance for the purpose of counting the period
      of limitation provided under Section 263 of the Income Tax Act.
      In the present case, the order was made/passed by the
      Commissioner on 26.03.2012 and according to the department it
H
                                       758
        THE COMMISSIONER OF INCOME TAX, CHENNAI v.                       759
             MOHAMMED MEERAN SHAHUL HAMEED

was dispatched on 28.03.2012. The relevant last date for the             A
purpose of passing the order under Section 263 considering the
fact that the assessment was for the financial year 2008-09 would
be 31.03.2012 and the order might have been received as per
the case of the assessee-respondent herein on 29.11.2012.
However, the date on which the order under Section 263 has
                                                                         B
been received by the assessee is not relevant for the purpose of
calculating/considering the period of limitation provided under
Section 263 (2) of the Act. If the interpretation made by the High
Court and the ITAT is accepted in that case it will be violating
the provision of Section 263 (2) of the Act and to add something
which is not there in the section. The word used is “ made” and          C
not the “receipt of the order”. As per the cardinal principle of law
the provision of the statue/act is to be read as it is and nothing is
to be added or taken away from the provision of the statue.
      Therefore, the High Court has erred in holding that the
order under Section 263 of the Act passed by the Commissioner            D
was barred by period of limitation, as provided under sub-section
(2) of Section 263 of the Act. The order passed by the
Commissioner under Section 263 of the Income Tax Act was
within the period of limitation prescribed under sub-section (2)
of Section 263 of the Act. [Paras 4.3 - 5][763-B-H; 764-A-B]
                                                                         E
        CIVIL APPELLATE JURISDICTION: Civil Appeal No.6204 of
2021.
      From the Judgment and Order dated 03.07.2019 of the High Court
of Judicature at Madras in Tax Case Appeal No.429 of 2019.
                                                                         F
      Vikramjit Banerjee, ASG, Rupesh Kumar, Ms. Purnima Bhat, Nalin
Kohli, Sughosh Subramanyam, Raj Bahadur Yadav, Mrs. Anil Katiyar,
Advs. for the Appellant.
        R. Sivaraman, K. Parameshwar, Advs. for the Respondent.
        The Judgment of the Court was delivered by                       G
        M. R. SHAH, J.
      1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 03.07.2019 passed by the High Court of Judicature at
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760            SUPREME COURT REPORTS                           [2021] 8 S.C.R.


A     Madras in Tax Case Appeal No.429 of 2019, by which the High Court
      has dismissed the said appeal preferred by the revenue and has confirmed
      the order dated 04.04.2013 passed by the learned Income Tax Appellate
      Tribunal (hereinafter referred to as the learned ITAT) in ITA No.2244/
      Mds/2012, the revenue has preferred the present appeal.
B           2. The facts leading to the present appeal in nutshell are as under:-
              2.1 The Assessing Officer (hereinafter referred to as the AO)
      passed an assessment order under Section 143 (3) of the Income Tax
      Act (hereinafter referred to as the Act) for the assessment year (AY)
      2008-09 vide assessment order dated 30.12.2010. The Commissioner of
C     Income Tax initiated revision proceeding under Section 263 of the Act to
      revise the assessment order passed by the learned Assessing Officer
      and issued a notice to the assessee - respondent herein on 01.02.2012.
      The assessee – respondent herein filed written submissions on 07.03.2012
      and 12.03.2012. That the learned Commissioner passed an order under
      Section 263 of the Act on 26.03.2012 holding that the Assessing Officer
D     had failed to make relevant and necessary enquiries and to make correct
      assessment of income after due application of mind and thus the
      assessment order made under Section 143 (3) of the Act was held to be
      erroneous and prejudicial to the interest of the revenue. The learned
      Commissioner set aside the assessment order with a direction to Assessing
E     Officer to make necessary enquiries on the aspects mentioned in the
      order under Section 263. The order passed by the learned Commissioner
      in exercise of powers under Section 263 of the Act was challenged by
      the assessee – respondent herein before the learned ITAT. At this stage,
      it is required to be noted that the order passed under Section 263 of the
      Act was dispatched by the office of the Commissioner on 28.03.2012.
F
             2.2 The assessee – respondent herein filed an appeal before the
      learned ITAT on 29.11.2012 submitting that it had come to know about
      the revision order only when he received notice dated 06.08.2012 under
      Section 143 (2) read with Section 263 of the Act from the office of the
      Assessing Officer. Thereafter, the respondent had requested the
G     Assessing Officer to furnish the copy of the order passed by the learned
      Commissioner which was supplied to him on 29.11.2012. Before the
      learned ITAT, it was the case on behalf of the assessee – respondent
      herein that the order passed by the learned Commissioner was beyond
      the period of limitation prescribed/mentioned under Section 263 (2) of
H     the Act. Vide order dated 04.04.2013 the learned ITAT accepted the
     THE COMMISSIONER OF INCOME TAX, CHENNAI v.                                761
    MOHAMMED MEERAN SHAHUL HAMEED [M. R. SHAH, J.]

contention on behalf of the assessee – respondent herein and allowed           A
the appeal filed by the assessee by holding that the revision order passed
by the learned Commissioner was passed beyond the period of limitation.
       2.3 Feeling aggrieved and dissatisfied with the order passed by
the learned ITAT quashing and setting aside the revisional order passed
by learned Commissioner under Section 263 of the Act and holding that          B
the order passed by the learned Commissioner was beyond the period of
limitation prescribed under Section 263 (2) of the Act, the revenue –
appellant herein preferred appeal before the High Court, raising the
following substantial question of law:-
      “Whether, on the facts and in the circumstances of the case, the         C
      case, the Tribunal had applied its mind and was right in holding
      that the revision order of the Commissioner of Income Tax under
      section 263 dated 26.3.2012 revising the assessment order dated
      31.12.2010 is barred by limitation provided under section 263(2)
      by assuming that the last date for passing the assessment order is
                                                                               D
      31.3.2012 and on the ground that the order was served on
      29.11.2012?”
      2.4 By the impugned judgment and order, the High Court has
dismissed the said appeal and has confirmed the order passed by learned
ITAT holding that the order passed by the learned Commissioner under
                                                                               E
Section 263 of the Act was barred by limitation. The High Court held
that the date on which the order was received by the assessee –
respondent herein is the relevant date for the purpose of determining the
period of limitation under Section 263 (2) of the Act.
      2.5 Feeling aggrieved and dissatisfied with the impugned judgment
                                                                               F
and order passed by the High Court, the revenue – appellant herein has
preferred the present appeal.
       3. Shri Vikramjit Banerjee, learned Additional Solicitor General
(ASG) appearing on behalf of the revenue – appellant has vehemently
submitted that the High Court as well as the learned ITAT both have
                                                                               G
misconstrued and misinterpreted the provision of Section 263, more
particularly sub-section (2) of Section 263 of the Act. It is submitted that
the High Court has erred in holding that the revision order dated 26.03.2012
passed by the Commissioner under Section 263 of the Act was barred
by period of limitation provided under Section 263 (2) of the Act.
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762            SUPREME COURT REPORTS                          [2021] 8 S.C.R.


A            3.1 It is submitted that the High Court has materially erred in
      holding that the order passed under Section 263 is barred by limitation
      provided under Section 263 (2) on the ground that order under Section
      263 was served on the assessee – respondent herein on 29.11.2012
      which was after the expiry of two years from the end of the financial
      year in which the order was sought to be revised.
B
              3.2 It is vehemently submitted by learned ASG that sub-section
      (2) of Section 263 of the Act provides that no order shall be ‘made’
      under sub-section (1) of Section 263 after the expiry of two years from
      the end of the concerned financial year and the relevant date in the
      present case to pass the order under Section 263 would be 31.03.2012.
C     It is submitted that in the present case the order in fact was passed on
      26.03.2012 and in fact dispatched on 28.03.2012. It is submitted that
      therefore the order passed by the learned Commissioner under Section
      263 was within the period of limitation prescribed under Section 263 (2)
      of the Act.
D            3.3 Shri R. Sivaraman, learned Advocate appearing on behalf of
      the respondent – assessee relying upon para 15 of the counter affidavit
      has submitted that as such the order passed by the learned Commissioner
      under Section 263 of the Act has been acted upon before it was set
      aside by learned ITAT and thereafter a fresh assessment order has been
E     passed by the Assessing Officer. It is submitted that therefore as such
      the issue involved in the present appeal has become academic.
             4. We have heard the learned counsel appearing on behalf of the
      respective parties at length. Though it is the case on behalf of the
      respondent – assessee that by now the issue involved in the present
F     appeal has become academic, considering the fact that the question of
      law raised in the present appeal is the pure question of law and therefore
      we are inclined to decide the said question of law.
             4.1 The short question of law which is posed for consideration
      before this court is, whether in the facts and circumstances of the case,
G     the High Court and the learned ITAT are right in holding that the order
      passed by the learned Commissioner passed under Section 263 was
      barred by period of limitation provided under Section 263 (2) of the Act?
      Whether the High Court is right in holding that the relevant date for the
      purpose of considering the period of limitation under Section 263(2) of
      the IT Act would be the date on which the order passed under Section
H     263 by the learned Commissioner is received by the assessee?
     THE COMMISSIONER OF INCOME TAX, CHENNAI v.                               763
    MOHAMMED MEERAN SHAHUL HAMEED [M. R. SHAH, J.]

      4.2 While deciding the aforesaid issues and question of law, Section    A
263 (2) of the Income Tax Act, which is relevant for our consideration is
required to be referred to, which reads as under:-
      “(2) No order shall be made under sub-section (1) after the expiry
      of two years from the end of the financial year in which the order
      sought to be revised was passed.”                                       B
       4.3 On a fair reading of sub-section (2) of Section 263 it can be
seen that as mandated by sub-section (2) of Section 263 no order under
Section 263 of the Act shall be “made” after the expiry of two years
from the end of the financial year in which the order sought to be revised
was passed. Therefore the word used is “made” and not the order               C
“received” by the assessee. Even the word “dispatch” is not mentioned
in Section 263 (2). Therefore, once it is established that the order under
Section 263 was made/passed within the period of two years from the
end of the financial year in which the order sought to be revised was
passed, such an order cannot be said to be beyond the period of limitation
prescribed under Section 263 (2) of the Act. Receipt of the order passed      D
under Section 263 by the assessee has no relevance for the purpose of
counting the period of limitation provided under Section 263 of the Income
Tax Act. In the present case, the order was made/passed by the learned
Commissioner on 26.03.2012 and according to the department it was
dispatched on 28.03.2012. The relevant last date for the purpose of passing   E
the order under Section 263 considering the fact that the assessment
was for the financial year 2008-09 would be 31.03.2012 and the order
might have been received as per the case of the assessee – respondent
herein on 29.11.2012. However as observed hereinabove, the date on
which the order under Section 263 has been received by the assessee is
not relevant for the purpose of calculating/considering the period of         F
limitation provided under Section 263 (2) of the Act. Therefore the High
Court as such has misconstrued and has misinterpreted the provision of
sub-section (2) of Section 263 of the Act. If the interpretation made by
the High Court and the learned ITAT is accepted in that case it will be
violating the provision of Section 263 (2) of the Act and to add something    G
which is not there in the section. As observed hereinabove, the word
used is “made” and not the “receipt of the order”. As per the cardinal
principle of law the provision of the statue/act is to be read as it is and
nothing is to be added or taken away from the provision of the statue.
Therefore, the High Court has erred in holding that the order under
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764             SUPREME COURT REPORTS                         [2021] 8 S.C.R.


A     Section 263 of the Act passed by the learned Commissioner was barred
      by period of limitation, as provided under sub-section (2) of Section 263
      of the Act.
             In view of the above and for the reasons stated above the question
      of law framed is answered in favour of the revenue – appellant and
B     against the assessee – respondent herein and it is held that the order
      passed by the learned Commissioner under Section 263 of the Income
      Tax Act was within the period of limitation prescribed under sub-section
      (2) of Section 263 of the Act. The present appeal is allowed accordingly.
      No costs.
C
      Divya Pandey                                                Appeal allowed.




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