The Tax Publishers2020 TaxPub(DT) 5603 (Del-HC) : (2021) 430 ITR 0399 : (2021) 277 TAXMAN 0108

INCOME TAX ACT, 1961

Article 226 Sections 197 and 264

Since the impugned order under section 197 was passed after an approval from CIT, it cannot be challenged by way of a revision petition before CIT under section 264, therefore, to hold otherwise, would amount to directing the petitioner to file an 'appeal from Caesar to Caesar'.

Writ - Maintainability - Order under section 197 passed after approval from CIT - Whether can be revised under section 264

Assessee filed writ petition against the order passed under section 197 which was passed after approval from CIT. Revenue contended that writ was not maintainable because assessee must file revision petition under section 264 before CIT. Held: Since the impugned order was passed after an approval from CIT, It cannot be challenged by way of a Revision Petition before CIT under section 264 to hold otherwise would amount to directing the petitioner to file an 'appeal from Caesar to Caesar'. This court was of the view that the present writ petition was maintainable as there was no efficacious alternate remedy available to the petitioner to challenge the impugned order. In fact, CIT can entertain a revision petition under section 264 only when the order, which is the subject-matter of revision is passed by an authority subordinate to him. Further, Notification No. 08/2018, dated 31-12-2018 issued by the CBDT mandates that the decision under section 197 with effect from 31-12-2018 has to be taken by the CIT, i.e., after a conscious application of mind. It has also been unequivocally admitted by respondent in para 7 of the impugned order that approval of higher authorities was taken on the online TRACES portal. Consequently, this court found merit in the submission of the petitioner that since the impugned order was passed after an approval from the CIT, it could not be challenged by way of a revision petition before the CIT under section 264 to hold otherwise, would amount to directing the petitioner to file an 'appeal from Caesar to Caesar'.

Distinguished:Sis Live v. ITO (2011) 333 ITR 13 (Del-HC) : 2011 TaxPub(DT) 1057 (Del-HC). Relied:CIT v. Smt. Annapoornama Chandrashekar 17 Taxmann.com 10 (Karn) and Tata Teleservices (Maharashtra) v. Dy. CIT [Writ Petition No. 2701/2017, decided on 25-1-2018) : 2018 TaxPub(DT) 667 (Bom-HC)].

REFERRED : National Petroleum Construction Company v. Dy. CIT, Bently Nevada LLC v. ITO Ward-1(1)(2), (2019) 107 Taxmann.com 440 (Del-HC) : 2019 TaxPub(DT) 4928 (Del-HC) and Instalment Supply (P.) Ltd. v. UOI AIR 1962 SC 53.

FAVOUR : In assessee's favour.

SUBSCRIBE TaxPublishers.inSUBSCRIBE FOR FULL CONTENT