The petitioner is approaching this court aggrieved by Ext.P4 order issued by the 1st respondent, rejecting a revision filed under Section 264 of the Income Tax Act 1961, with respect to the assessment year 2001-2002. The petitioner filed return on 31/10/2001 showing loss of Rs.6,03,840/-. The returned loss was accepted under Section 143(1)(a). A revised return was submitted on 31/03/2003 under Section 139(5), wherein business loss was claimed at Rs.18,80,149/-. There was no intimation issued under Section 143(1)(a) nor any notice under Section 143(2) was issued with respect to the revised return. With respect to the previous year to 2000-2001, the petitioner provided a sum of Rs.80,42,417/-as provision for warranty. But the Assessing Officer had not allowed the provision for warranty. The disallowance was confirmed by the Commissioner, of Income Tax (Appeals) and further by the Income Tax Appellate Tribunal. According to the petitioner, out of the provision for warranty of Rs.80,42,417/- made during the year 2000- 2001, an expenditure of Rs.48,21,403/- was incurred during the year 2001-2002. Since provision for warranty was made during the previous year, this amount was not shown as actual expenditure incurred during the asessment of 2001-2002. So also this amount was not debited in the P&L account of 2001-2002. The petitioner claimed that this amount of Rs.48,21,403/- should be allowed as actual expenditure, since allowance on the provision for warranty was not allowed with respect to the year 2000-2001. 2. While disposing the revision under 264, the 1st respondent found that the petitioner had not claimed the above said amount of expenditure of Rs.48,21,403/-, either in the original return or in the revised return. Further, the provision for warranty with respect to 2000- 2001 was not claimed by the petitioner in the original return of the year concerned or in the return filed in response to 148 notice. For the first time such a claim was made only on 22/12/2003. Therefore, it is evident that when the original return of assessment for the year 2001-2002 was submitted, the provision for warranty of Rs.80,42,417/- was not claimed in the return filed with respect to the assessment year 2000-2001. This claim for provision for warranty was also not claimed in the revised return for the assessment year 2001-2002. Therefore, the claim that the said amount of Rs.48,21,403/- was not shown as actual expenditure because the provision for warranty was made during the previous year, is not true and correct. The 1st respondent further found that there exists no order of assessment for the year 2001-2002, on which jurisdiction under Section 264 can be exercised. It is observed that the jurisdiction under Section 264 can be exercised only against an order passed by the Assessment Officer. With respect to the year 2001-2002 the Assessing Officer had acceded the claims by virtue of intimation under Section 143(1)(a). Hence, the assessee cannot have a grievance against the accepted claim contained in the intimation, is the findings. It is found that the claim for actual expenditue of Rs.48,21,403/- was not made in the original return or in the revised return of the year concerned. Moreover, it is found that the revision is filed not within the limitation period stipulated, if computed from the date of intimation under Section 143(1)(a), and it is submitted only at a highly belated stage, after the lapse of about three years.
3. Contention of the petitioner is that the amount of Rs.48,21,403/- was liable to be accepted as actual expenditure in view of the rejection of the claim with respect to provision for warranty in the previous year of 2000-2001. But, as observed by the 1st respondent, such a claim was not even made at the time of filing of the revised return.
4. However, the basic question regarding sustainability of revision under Section 264 arises. Since it is evident that the jurisdiction is not invoked against any order passed by the assessing authority, invocation of Section 264 can be sustainable before the 1st respondent, seeking direction for acceptance of a claim without there being any order passed by the assessing authority. A learned Judge of this court had occasion to consider the above question in the judgment in WP(C) No.17701/2007, dated 26/05/2011. Referring to provisions contained in Section 264, it was observed that, the revision should be against an order by an authority sub-ordinate to the Commissioner. Further, the revision should have been filed within one year from the date of the order from which the revision is sought for. It is held that when there is no order of whatsoever, the revision is not maintainable.
5. This court is of the considered opinion that the invocation of Section 264 itself was not maintainable, since the petitioner was not challenging any order passed by the assessing authority. Evidently, the claim for allowing the sum of Rs.48,21,403/- as actual expenditure was not raised before the assessing authority. Hence, the jurisdiction invoked seeking the 1st respondent to direct the assessing officer to allow such claim, is rightly rejected. This court do not find any ground, legal or otherwise, warranting interference with Ext.P4.
Consequently the writ petition fails and same is hereby dismissed.
Sd/- C.K. ABDUL REHIM JUDGE MJL