Section 263 not mandate service of order Within Two Years: SC

CIT Vs Mohammed Meeran Shahul Hameed (Supreme Court)

 On a fair reading of sub­section (2) of Section 263 it can be seen that as mandated by sub­section (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 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 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 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 limitation provided under Section 263 (2) of the Act. Therefore the High Court as such has misconstrued and has misinterpreted the provision of sub­section (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 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 Section 263 of the Act passed by the learned Commissioner was barred by period of limitation, as provided under sub­section (2) of Section 263 of the Act.

FULL TEXT OF THE SUPREME COURT JUDGMENT/ORDER

1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 03.07.2019 passed by the High Court of Judicature at 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.

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