Under section 264 of the Income tax Act, 1961 an assessee can move a revision petition to the Commissioner of Income tax any time within a period of one year from the date of passing of the order by the assessing officer. The commissioner is empowered to exercise powers under this section in favour of the assessee. However such section places an embargo on the power of the Commissioner to revise an order where the order has been made the subject matter of an appeal to the Commissioner of Income-tax since both the commissioner (Appeals) and the commissioner enjoy same level. In other words such power cannot be exercised during the pendency of appeal before Commissioner (Appeals).
However there is nothing in the law that prevents an assessee to move appellate jurisdiction if the effort made u/s 264 is proved unsuccessful. The Madras High Court in the case of CIT v. D. Lakshminayayanapathi (119TAX390) held that the Commissioner (A) would be justified in entertaining an appeal against the assessment even though the Commissioner had passed an order u/s 264 against the assessee. The High Court held that the present law provides for more than one remedy to the assessee and the assessee can certainly invoke all of them. In other words an assessee does not exhaust remedy u/s 246 where his previous attempt to get relief u/s 264 has proved to be unsuccessful. Also it is a well-settled principle under law that a statutory provision conferring a right of appeal should be liberally construed. In such cases the appellate authorities would be acting within their powers if they condone delay in filing an appeal before them for sufficient cause for not presenting it within that period.