JUDGMENT : Harisankar V. Menon, J. The petitioner, an assessee under the Income Tax Act, 1961 (for short ‘the Act’), has filed this writ petition essentially challenging Ext.P4 order dated 05.12.2016 issued by the 1st respondent, rejecting a request made by the assessee under Section 264 of the Act. He also sought for the issue of appropriate directions to the 1st respondent herein to grant refund of the TDS amount based on the revised return filed, following certain judgments referred to in the prayer portion. 2. The short facts necessary for the disposal of this writ petition, are as follows: The petitioner had filed its return with respect to the Assessment Year 2012-13 belatedly under Section 139(4) of the Act, on 10.05.2013. While filing the said return, the petitioner, though claimed certain losses, did not include certain portions of Tax Deducted at Source, which were reflected in the Form 26AS statements of the petitioner. 3. The assessment proceedings against the petitioner under Section 143(1) were taken culminating in the issue of Ext.P1 intimation dated 04.06.2013. A reference to Ext.P1 would show that the loss, as declared by the petitioner, is accepted. Upon receipt of the intimation in Ext.P1, the petitioner noticed that in the return filed by him, the TDS amount was not claimed on account of which the TDS portion is not being refunded to the petitioner. In such circumstances, the petitioner submitted an online request for rectification under Section 154 of the Act before the Centralized Processing Centre (CPC). It appears that the CPC has issued Ext.P2 dated 09.12.2014, pointing out that it cannot be rectified at their end since the matter has already been transferred to the jurisdictional Assessing Authority-2nd respondent-who may be contacted by the petitioner for further steps in that regard. 4. Though the petitioner had approached the jurisdictional Assessing Authority, after waiting for some time, the petitioner submitted Ext.P3 application dated 14.12.2015, under Section 264 of the Act for revision of the intimation at Ext.P1. 5. The 1st respondent herein has, thereafter, issued Ext.P4 order rejecting the request for rectification filed by the petitioner as above. While issuing the order at Ext.P4, the 1st respondent stated that the return being filed beyond the period prescribed, the petitioner is not entitled to file a revised return and therefore, there cannot be any revision under Section 264 of the Act. While issuing the order at Ext.P4, the 1st respondent stated that the return being filed beyond the period prescribed, the petitioner is not entitled to file a revised return and therefore, there cannot be any revision under Section 264 of the Act. He further found that the intimation of the CPC cannot be considered to be an order prejudicial to the assessee, since the same is issued solely upon the return filed by the petitioner. Ultimately, he found that since the intimation cannot be considered to be an “order”, the power under Section 264 of the Act cannot be exercised. 6. It is challenging Ext.P4 order, issued as above, that this writ petition is filed by the petitioner with the afore prayers. A statement dated 18.07.2017 is filed by the learned Standing Counsel for the Income Tax Department, seeking to sustain Ext.P4 order issued by the 1st respondent herein. 7. I have heard Sri.Kuriyan Thomas, the learned counsel for the petitioner and Sri.Jose Joseph, the learned Standing Counsel for the Income Tax Department appearing for the respondents herein. 8. The learned counsel for the petitioner would contend that: (i) the rejection of the application under Section 264 of the Act by the 1st respondent taking the view that the intimation is not an “order”, is not the correct proposition, relying on the judgment of a Division Bench of this Court in Commissioner of Income Tax v. K.V.Mankaram and Company [(2000) 162 CTR (Ker) 357]. (ii) He again points out that Tax Deducted at Source being reflected in Form 26AS, ought to have been considered while processing the return, even if the same was not claimed as a refund in the original return. For this proposition, he relies on a series of judgments in Commissioner of Income Tax v. K.V. Mankaram and Company [(2000) 162 CTR (Ker) 357], Manoharlal Agarwal v. Commissioner of Income Tax [(2014) 222 Taxman 138 (Guj)], Parekh Bros v. Commissioner of Income Tax and Others [(1983) 36 CTR (Ker) 372], Hitech Analytical Services v. Principal Commissioner of Income Tax & Anr. [(2019) 306 CTR (Guj) 270], Rites Ltd. V. Commissioner of Income Tax [(2017) 154 DTR 121 (Del)] and EPCOS Electronic Components S.A. v. Union of India and Others [(2020) 316 CTR (Del) 126], and contends that even if the assessee commits a mistake in filing a return, that is not the end of the day and the Assessing Authority has a duty cast upon him to consider the true state of affairs, especially when Form 26 AS is forming part of the assessment records. (iii) The learned counsel also points out that there is subtle difference between Section 263 and Section 264, and therefore, any error, even if it is on account of a mistake from the side of the assessee, would be the subject matter of revision by the Commissioner under Section 264. He relies on the same set of judgments in support of the above proposition. 9. Per contra, Sri.Jose Joseph, the learned Standing Counsel for the Income Tax Department, contends that: (i) the intimation at Ext.P1 cannot be treated as an “order”. He points out that the judgment in K.V.Mankaram’s case (supra) was rendered without noticing the inclusion of an intimation as a rectifiable order under Section 154, also an appealable order under Section 246, at the same time do not include the same as a revisable order under Section 264. (ii) He also points out by referring to the provisions of Section 239 of the Act that any claim for refund can be made only by making the claim through the return and since a specific method is so prescribed, the same cannot bypassed. 10. I have considered the rival submissions as well as the connected records. 11. The first issue arising for consideration is as to whether Ext.P4 order to the extent of finding that Ext.P1 intimation cannot be treated as an “order,” is correct or not. Section 264 of the Act reads as under: “264. 10. I have considered the rival submissions as well as the connected records. 11. The first issue arising for consideration is as to whether Ext.P4 order to the extent of finding that Ext.P1 intimation cannot be treated as an “order,” is correct or not. Section 264 of the Act reads as under: “264. Revision of other orders (1) In the case of any order other than an order to which section 263 applies passed by an authority subordinate to him, the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner may, either of his own motion or on an application by the assessee for revision, call for the record of any proceeding under this Act in which any such order has been passed and may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act, may pass such order thereon, not being an order prejudicial to the assessee, as he thinks fit. (2) The Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner shall not of his own motion revise any order under this section if the order has been made more than one year previously. (3) In the case of an application for revision under this section by the assessee, the application must be made within one year from the date on which the order in question was communicated to him or the date on which he otherwise came to know of it, whichever is earlier: Provided that the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner may, if he is satisfied that the assessee was prevented by sufficient cause from making the application within that period, admit an application made after the expiry of that period. (4) The Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner shall not revise any order under this section in the following cases— (a) where an appeal against the order lies to the Deputy Commissioner (Appeals) or to the Commissioner (Appeals)] or to the Appellate Tribunal but has not been made and the time within which such appeal may be made has not expired or, in the case of an appeal to the Commissioner (Appeals) or to the Appellate Tribunal, the assessee has not waived his right of appeal; or (b) where the order is pending on an appeal before the Deputy Commissioner(Appeals); or (c) where the order has been made the subject of an appeal to the Commissioner (Appeals) or to the Appellate Tribunal. (5) Every application by an assessee for revision under this section shall be accompanied by a fee of five hundred rupees. (6) On every application by an assessee for revision under this sub-section, made on or after the 1st day of October, 1998, an order shall be passed within one year from the end of the financial year in which such application is made by the assessee for revision. Explanation.—In computing the period of limitation for the purposes of this sub-section, the time taken in giving an opportunity to the assessee to be re-heard under the proviso to section 129 and any period during which any proceeding under this section is stayed by an order or injunction of any court shall be excluded. (7) Notwithstanding anything contained in sub-section (6), an order in revision under sub-section (6) may be passed at any time in consequence of or to give effect to any finding or direction contained in an order of the Appellate Tribunal, High Court or the Supreme Court. Explanation 1.—An order by the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner declining to interfere shall, for the purposes of this section, be deemed not to be an order prejudicial to the assessee. Explanation 2.—For the purposes of this section, the Deputy Commissioner (Appeals) shall be deemed to be an authority subordinate to the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner.” 12. It is true that the power for revision under Section 264 of the Act is only available in the case of an “order”. Explanation 2.—For the purposes of this section, the Deputy Commissioner (Appeals) shall be deemed to be an authority subordinate to the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner.” 12. It is true that the power for revision under Section 264 of the Act is only available in the case of an “order”. Though Section 264 of the Act makes a reference to “any proceeding under this Act”, ultimately, it is the “order” that is issued which can be revised by virtue of the power conferred on the Commissioner under Section 264 of the Act. However, this Court, in K.V.Mankaram’s case (supra) had considered the question as to whether an intimation under Section 143(1) of the Act can be treated as an order of assessment, finding in paragraph 6 of that judgment, as under: “6. Section 185 can be applied only in making the assessment of the firm. The expression "assessment", is clearly referable to sections 143, 144 and 147 of the Act. A proceeding under ss.143(1)(a) does not result in an order of assessment. For the purpose of s.154, 246 and 264, the proceeding under s.143(1)(a) is treated as an order by the assessing authority. The intimation given under s.143(1)(a) cannot be treated to be an order of assessment. It is only to be deemed as an order for the limited purpose of sections 246 and 264 of the Act. Under s.143(1)(a)(i), the intimation is deemed to be a notice of demand under s.156 of the Act. It is not treated as an order of assessment. The two are conceptually different. Except intimation, no other order is contemplated under s.143(1)(a). Sec.156 provides that when any tax, interest, penalty, fine or any other sum is payable in consequence of any order passed under the Act, the AO shall serve upon the assessee a notice of demand in the prescribed form. That clearly brings about the distinction between an order of assessment and a notice of demand. As indicated above, intimation under S.143(1)(a) is deemed to be the latter. Under s.246 also, a clear distinction is made between an intimation and an order of assessment.” Therefore, by the above judgment, at least for the purposes of Sections 154, 246 and 264, an intimation under Section 143(1) can be treated as an order. As indicated above, intimation under S.143(1)(a) is deemed to be the latter. Under s.246 also, a clear distinction is made between an intimation and an order of assessment.” Therefore, by the above judgment, at least for the purposes of Sections 154, 246 and 264, an intimation under Section 143(1) can be treated as an order. In the said judgment itself, there is a finding to the effect that, in reality, the intimation is not an “order” at all. However, it is by virtue of a deeming fiction that an intimation is being treated as an “order” for the limited purposes mentioned therein. 13. It is to be noticed that as in the present case, there may be instances where an assessee commits a minor omission or a mistake. It may also be committed by his representative for that matter, whoever prefers the return. For such minor trivial mistakes/omissions, if an intimation is not being treated as an order, the position would be that against an intimation like the one challenged in this writ petition, there will be no remedy available to an assessee. Perhaps, it is taking note of the above position that this Court has held that an intimation is to be deemed to be an order for the limited purposes stated in paragraph 6 of the above judgment. 14. Therefore, I have no hesitation in holding that the finding to the contrary, contained in Ext.P4 order, cannot be sustained. 15. In such circumstances, in the normal course, this Court is to set aside Ext.P4 and send the matter back to the 1st respondent for reconsideration. However, a perusal of Ext.P4 would go to show that the 1st respondent has considered the question as regards the refund on merits and went to the extent of saying that in so far as the original return was belated, there cannot be any revision of the state of affairs through a revised return. 16. In such circumstances, this Court is constrained to consider the question as regards the eligibility for refund, prayed for by the petitioner. 17. The admitted case is that the petitioner is a contractor. While raising invoices after completion of the works, the awarders have deducted various amounts towards TDS under Section 194C of the Act. Ext.P5 reflects such payments. The department also does not have any case that such amounts have been deducted. 17. The admitted case is that the petitioner is a contractor. While raising invoices after completion of the works, the awarders have deducted various amounts towards TDS under Section 194C of the Act. Ext.P5 reflects such payments. The department also does not have any case that such amounts have been deducted. True, the said amounts ought to have been included in a return filed by the assessee. Unfortunately, the state of affairs is the other way around. 18. In Parekh Brothers’s case (supra), a Division Bench of this Court has considered a question where certain deductions under Section 35B of the Act were omitted to be claimed by the assessee in the return. The assessment was also finalised accordingly. Later the assessee, noticing that the deduction was not claimed, preferred an application under Section 264 of the Act before the Commissioner concerned. The Commissioner took the stand that the claim having not been raised through the original return, there is nothing to be revised. The matter was taken up before this Court. This Court, considering the said factual position as well as the provisions of the Statute, made reference to a circular dated 11.04.1955, issued by the Central Board of Direct Taxes. Thereafter, this Court found as under: “17. We are referring to this circular only to highlight the spirit behind this circular. In our opinion the circular envisages that “Officers of the Department” which will, certainly take in the Head of the Department the CIT (1st respondent herein) should bear in mind the spirit of the said circular in affording relief to the assessee, as indicated therein. At least when the matter is brought to their notice, without raising technical objections, the matter should receive attention. The circulars have got the force of law. The circulars, it any rate, are binding on the Department. The assessee is entitled to the benefit of such circulars. It is necessary to refer to the scope and enforceability of such circulars in view of the fact that we are not resting our decision on the above circular. But we are referring to that circular only to highlight the spirit behind the circular in the approach to be made by the Departmental officials, when a claim for deduction or relief is claimed. But we are referring to that circular only to highlight the spirit behind the circular in the approach to be made by the Departmental officials, when a claim for deduction or relief is claimed. The binding nature of the circulars has been considered in the decisions reported in CIT v. B.M. Edward, India Sea Food (1979) 12 CTR (Ker) 278 (FB) : (1979) 119 ITR 334 (FB) (Ker), CIT vs. Venkiteswaran (1979) 13 CTR (Kar) 373 : (1979) 120 ITR 675 (Ker) and CWT vs. Gammon (India) (P) Ltd. (1981) 130 ITR ; 471 (Bom). 18. In the light of the above discussions, we have no hesitation to hold that the CIT committed an error of law in holding that it is not open to him for the first time to entertain a relief of the kind pleaded by the assessee and in denying jurisdiction. We hold, That even though a mistake was committed by the assessee and it was detected by him after the order of assessment, and the order of assessment is not erroneous, none the less it is open to the assessee to file a revision before the CIT under s.264 of the Act and claim appropriate relief. But it should not be forgotten that the power to be exercised under s.264 is a revisionary one. The limitations implicit in the exercise of such power are well known. The jurisdiction is discretionary. Whether in a particular case, on the basis of facts disclosed, the CIT will exercise his jurisdiction and interfere in the matter, is a matter of discretion. It is certainly a judicial discretion vested in the CIT, to be exercised in accordance with law. We are not called upon to pronounce on the scope and amplitude of the revisional power. The only question mooted for our consideration in this case is whether the CIT has got revisional jurisdiction at all, where the assessee having included the income for assessment, can claim the relief of wieighted deduction under s.35B of the Act, for the first time, in a petition filed under s.264 of the Act. On that aspect of the question, we have no doubt in our mind that the CIT has jurisdiction to entertain a revision petition under s.264 of the Act.” 19. On that aspect of the question, we have no doubt in our mind that the CIT has jurisdiction to entertain a revision petition under s.264 of the Act.” 19. This Court had occasion to consider a similar issue with respect to an assessee whose properties were acquired for the purpose of the Kochi Metro Rail. By virtue of the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013 (the Land Acquisition Act), the assessee was entitled to complete exemption as against the compensation amount received by him under Section 96 thereto. However, the assessee did not claim the said benefit in the return, and the TDS amount deducted by the Kochi Metro Rail was also not claimed. This matter gained the attention of this Court in Raghavan Nair v. Assistant Commissioner of Income-tax and Another [ 2018 (1) KLT 432 ]. Considering the above issue, this Court has held in paragraph No.11 as under: “11. It is beyond dispute that the powers of the Assessing Officers under the Act are quasi-judicial in nature and they are duty-bound, therefore, to act fairly in the discharge of their functions. They are also invested with the authority to do justice to the assessees. True, in a given case where the self-assessment made by an assessee is proposed to be revised on the ground that the deduction made by him in the return under a particular head is inadmissible, the Assessing Officer, in the absence of a revised return, would proceed on the basis of the facts disclosed by the assessee in the return. But, in a case where it is apparent on the face of the record that the assessee has included in his return, an income which is exempted from payment of Income-tax, on account of ignorance or by mistake, according to me, the Assessing Officer is bound to take into account the said fact in a proceeding under section 143 of the Act. In other words, if the capital gains on a transaction is exempted from payment of tax, the Assessing Officer, has a duty to refrain from levying tax on the said capital gains and the Assessing Officer cannot, in such cases, refuse to grant relief under section 143 of the Act to the assessee on the technical plea that the assessee has not filed a revised return. It is so since the paramount duty of the Assessing Officer is to complete the assessments in accordance with law.” 20. Therefore, going by the principles laid down in the above judgments, the stand taken by the 1st respondent is to be evaluated. As stated earlier, the petitioner had pointed out with reference to Ext.P5 that substantial amounts have been deducted towards Tax Deducted at Source and remitted with the Income Tax Department also. This having not been disputed by the Department, the Assessing Authority, or, for that matter, the CPC had a duty or obligation to notice that the said payments were lying with the department, not claimed in the return filed by the petitioner. After noticing such amounts lying unclaimed, it was the duty of the Department to alert the assessee regarding the non-claiming of the said amounts, even if the returns were filed belatedly. It is true that Section 239 of the Act provides for claiming a refund under the Statute. However, in cases of the present nature, wherein the assessee does not make any further claims as regards exemptions/deductions under the Statute, and only requests for considering the claim of refund, it was the duty of the department to consider the same. The department is not to act as a mere tax-gatherer as held by this Court in Commercial Tax Officer-I, Wadakkancherry and Another v. C.R. Varghese [ 2018 (3) KLT 468 ], wherein it is held in paragraph No.9 as under: “9. ………..It is high time the officers of the Department rose up from their mediocre mind set and became facilitators of finance and commerce aiding the economic advancement of the nation rather than reducing themselves to mere tax collectors and target achievers. The taxing statute is not an instrument of oppression and has to be treated as one enabling trade and commerce; which at the same time fetch revenue for the State to be employed in discharging its various activities and obligations to the citizen. Without enterprise, there would be no revenue and if the source is choked, it would be akin to killing the proverbial hen that lays the golden eggs. Without enterprise, there would be no revenue and if the source is choked, it would be akin to killing the proverbial hen that lays the golden eggs. It is time the Department and its officers woke up to the economic realities and resort to a more practical and pragmatic approach in proceeding under and enforcing the tax enactment to have a complete make over from the image of oppressors to that of facilitators.” 21. On the whole, I have no hesitation in holding that Ext.P4, issued by the 1st respondent, is to be set aside. Therefore, this writ petition is allowed by quashing Ext.P4 order issued by the 1st respondent. There will be a further direction to the competent among the respondents to take into account Ext.P5 and in the light of Ext.P1 intimation, refund the excess amount retained by the department as expeditiously as possible, at any rate, within a period of three months.