C. Gnanasundara Nayagar v. Commissioner Of Income-Tax, Madras.

Rajagopalan, J.:— When the petitioner was assessed to income-tax for the assessment years 1951-52 and 1952-53 the rental income from two of his houses, 9/2 and 9/3 Mosque Street, Kodambakkam, was included in his return by the assessee himself, and he was taxed on that income also, Rs. 3,500, in the first and Rs. 3,930 in the second year. These assessments were completed by the Income-tax Officer on November 30, 1953. Neither then nor at the stage of the appeals the petitioner preferred successively to the Assistant Commissioner and to the Tribunal against the orders of assessment, did the petitioner (assessee) claim that he was entitled to deduct the rent from these two houses under section 4(3)(xii) of the Income-tax Act. The Assistant Commissioner disposed of the appeals on November 20, 1954. The further appeals preferred by the assessee on January 26, 1955, were disposed of by the Tribunal on May 9, 1955. It is not necessary to examine the scope of the reliefs asked for by the petitioner in those appeals. It is enough to note that the petitioner did not prefer any claim based on section 4(3)(xii) of the Act, and such a claim was not the subject-matter of any of these appeals.

2. On December 10, 1954, that is, after the disposal of the appeals by the Assistant Commissioner and before the petitioner preferred appeals to the Tribunal against the orders of the Assistant Commissioner, the petitioner applied to the Income-tax Officer and to the Commissioner of Income-tax for relief under section 4(3)(xii). The claim of the petitioner was that the construction of the two houses in question was commenced in April, 1949, and completed by March 31, 1950, which was within the statutory limits prescribed by section 4(3)(xii). The Income-tax Officer could not revise his orders of assessment, and we need not concern ourselves further with the application preferred to him by the petitioner. In the application preferred simultaneously to the Commissioner, the petitioner invoked the jurisdiction vested in the Commissioner by section 33A(2). The Commissioner called for reports from his subordinates, and eventually on September 28, 1955, he dismissed the petitioner's applications. The relevant portion of his order ran:

“Section 4(3)(xii) of the Act is clear that the income can be excluded for a period of 2 years from the date of completion of the building. The crucial date is the date of completion. In this case, no evidence has been adduced as to the exact date of completion of the buildings.”

3. The petitioner applied under article 227 of the Constitution to revise the orders of the Commissioner dated September 28, 1955. Civil Revision Petition No. 1628 of 1957 related to the claim with reference to the assessment year 1951-52 and C.R.P No. 62 of 1958 related to the next year.

4. The contents of the reports of the subordinate officers which were submitted to the Commissioner before he dismissed the petitioner's application on September 28, 1955, were obviously not disclosed to the petitioner. The finding of the Commissioner was that the petitioner had adduced no evidence to prove the date on which the construction of the two houses had been completed. Learned counsel for the Department conceded after a reference to the records that he produced, that the view of the Commissioner that there was no evidence was erroneous. There was material disclosed in the reports of the subordinate officers which fully supported the claim of the petitioner, which material and which reports the Commissioner really failed to consider. Had the matter rested there, we would have had no difficulty in setting aside the orders of the Commissioner, and in directing him to dispose of the applications of the petitioner dated December 10, 1954, afresh and in accordance with law.

5. Learned counsel for the Department contended that a remand of the proceedings to the Commissioner was not called for, because the Commissioner had no jurisdiction, in the circumstances of this case, to grant the relief claimed by the petitioner, which necessarily involved a revision of the orders of assessment. These assessments became final when the Tribunal disposed of the appeals on May 9, 1955. Learned counsel urged that clause (c) of the proviso to section 33A(2) barred the assumption and exercise of any revisional jurisdiction by the Commissioner to revise the orders of assessment. It is true that that was not a ground on which the Commissioner rejected the application preferred to him by the petitioner. It is equally true that the only ground on which the Commissioner rejected the applications does not bear any scrutiny. None the less, we have to uphold the contention of the learned counsel for the Department, that the petitioner misconceived his remedy when he invoked the revisional jurisdiction of the Commissioner under section 33A(2). Section 33A(2) ran:

“(2) The Commissioner may, on application by an assessee for revision of an order under this Act, passed by any authority subordinate to the Commissioner, made within one year from the date of the order (or within such further period, as the Commissioner may think fit to allow on being satisfied that the assessee was prevented by sufficient cause from making the application within that period), call for the record of the proceeding in which such order was passed, and on receipt of the record 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:

Provided that the Commissioner shall not revise any order under this sub-section if—

(a) where an appeal against the order lies to the Appellate Assistant Commissioner or to the Appellate Tribunal but has not been made, the time within which such appeal may be made has not expired, or, in the case of an appeal to the Appellate Tribunal, the assessee has not waived his right of appeal, or

(b) where an appeal against the order has been made to the Appellate Assistant Commissioner, the appeal is pending before the Appellate Assistant Commissioner, or

(c) the order has been made the subject of an appeal to the Appellate Tribunal:

Provided further that an order by the Commissioner declining to interfere shall be deemed not to be an order prejudicial to the assessee.

Explanation.—For the purposes of sub-sections (1) and (2), the Appellate Assistant Commissioner shall be deemed to be an authority subordinate to the Commissioner.”

6. We shall advert again to the factual position in this case. The petitioner did not claim either in the assessment proceedings before the Income-tax Officer or in the appeals against the assessment orders that the petitioner was entitled to the relief for which section 4(3)(xii) provided. Such a claim was not the subject-matter of the appeal to the Tribunal, though the appeals were preferred to the Tribunal only after the petitioner realised that he had omitted to claim the relief in the assessment proceedings. The applications under section 33A(2) were preferred on December 10, 1954, and the appeals to the Tribunal were preferred only after that on January 26, 1955. Still the position was that the petitioner asked only the Commissioner to revise the orders of assessment in each of the two years. He could have asked for the same relief in the appeals that he subsequently preferred to the Tribunal, but he did not.

7. Learned counsel for the Department was well-founded in his contention, that where an order has been made the subject of an appeal to the Tribunal, clause (c) of the second proviso to section 33A(2) comes into play and bars the jurisdiction of the Commissioner to revise, that order. Learned counsel for the petitioner pointed out that the relief claimed by the petitioner in the applications preferred under section 33A(2) was not the subject-matter of the appeals the assessee preferred to the Tribunal. The Tribunal could not and did not investigate the claim. It could not and did not adjudge the claim. It is needless to examine in any detail the decided cases cited by the petitioner which certainly supported his claim that the Tribunal would have had no jurisdiction, in the circumstances of this case, to grant a relief not claimed in the appeals, the relief claimed by the assessee independently of the appeals in the applications he preferred to the Commissioner under section 33A(2). That, however, is not enough to exclude the petitioner's claim preferred to the Commissioner from the scope of the ban imposed by clause (c) of the proviso to section 33A(2). That ban applies where the order, the revision of which the assessee seeks under section 33A(2) is made the subject of appeal to the Tribunal. There is no dispute about the factual position that the order the Commissioner was asked to revise was the order of assessment, the order of the Income-tax Officer in each of the two years. Was that order of assessment the subject of an appeal to the Tribunal within the meaning of clause (c) of the proviso is the question. It was. That the relief claimed in the applications preferred under section 33A(2) was not the subject-matter of the appeal to the Tribunal does not alter the position that the order of assessment was the subject of the appeal. To put it differently, the fact that the jurisdiction of the Tribunal was limited to the disposal of the claims preferred in the appeal did not alter the position that the order of assessment was the subject of the appeal. Even if only a portion of an order of assessment is the subject of the appeal to the Tribunal, still the position is that the subject of the appeal to the Tribunal is the order of assessment. To accept the plea of the learned counsel for the petitioner, that the appeals the petitioner preferred to the Tribunal did not prevent the Commissioner from exercising the revisional jurisdiction vested in him by section 33A(2), we have to construe the word “order” in clause (c) of the proviso, as the “relief claimed” and to read clause (c) as if it ran:

“provided that the Commissioner shall not revise any order under this sub-section if the relief claimed has been made the subject of an appeal to the Appellate Tribunal.”

8. Such an interpretation is not permissible. The scheme underlying the proviso to section 33A(2) bars such a narrow interpretation being placed on the word “order” in clause (c) alone of the proviso.

9. In the present case it should be obvious that the petitioner could have claimed the benefit under section 4(3)(xii) in the assessment proceedings before the Income-tax Officer. Even had he failed to ask for it at that stage, he could have asked for it when he appealed to the Assistant Commissioner. He could have claimed the relief even when he appealed to the Tribunal. He could have made not only the order of assessment but also the specific claim for relief based on section 4(3)(xii) the subject of the appeal to the Tribunal.

10. Where the order appealed against is the order of assessment the word “order” in clause (a) of the proviso to section 33A(2) obviously refers to the order of assessment and not to the relief claimed in the appeal, because at that stage what would be factually asked for in the appeal would not be known. The possibility of an appeal is enough to bar the assumption of revisional jurisdiction. It is the pendency of the appeal before the Assistant Commissioner that bars such revisional jurisdiction under clause (b) of the proviso. It should be remembered that the scope of the appellate jurisdiction of the Assistant Commissioner is much wider than that of the Tribunal. With reference to the Assistant Commissioner and the Commissioner, the Act does not permit concurrent remedies, appellate and revisional, with reference to any of the reliefs an assessee could claim with reference to an order of assessment. That is the position, even though the Assistant Commissioner is a subordinate of the Commissioner or is deemed to be the subordinate of the Commissioner for the purposes of section 33A(2), But then the Commissioner can subsequently revise the orders of the Assistant Commissioner. The Commissioner, however, has no jurisdiction to revise the order of the Tribunal. Therefore, under clause (c) of the proviso, an appeal being preferred to the Tribunal is enough to bar the exercise of revisional jurisdiction. If no appeal has been preferred to the Tribunal but there is still time to prefer the appeal, clause (a) comes into play and bars the revisional jurisdiction. If an appeal is preferred, clause (c) comes into play and bars the jurisdiction to revise the order appealed against, the whole or any portion of that order. The finality of an assessment which flows from the order of a Tribunal cannot obviously be disturbed by the Commissioner in the exercise of his revisional jurisdiction under section 33A(2). Consistent with the scheme of the proviso to section 33A(2), that revision and appeal are not concurrent remedies open to an assessee, clauses (a) and (c) bar the revisional jurisdiction, the first when an appeal is open to the Tribunal, and the second, when an appeal has been preferred to the Tribunal. Running through the entire scheme is the basic concept of the unity of an order of assessment for purposes of appeal or revision. The position is much the same as in the case of assessments to sales tax under the Madras General Sales Tax Act, which was explained by the Divisional Bench of this court in State of Madras v. India Coffee Board [1960] 11 S.T.C 1.. We must, however, make it clear that we are not relying on that decision to construe the meaning of the expression “order” in clause (c) of the proviso to section 33A(2) of the Income-tax Act. Analogy is not a permissible aid to construction, where the statutory provisions are not even in pari materia.

11. Learned counsel for the petitioner referred to the provisions of Order 47, rule 1, of the Civil Procedure Code, and to two decisions thereon, Behari Lal v. Gobardhan Lal A.I.R 1948 All. 353. and Savitramma v. Satyanarayana-murthy [1959] 2 An. W.R 541.. The statutory provisions for a review under Order 47, rule 1, of the Civil Procedure Code, are not in pari materia with the provisions of section 33A(2), which provide for a revisional jurisdiction. Not only the assumption of the revisional jurisdiction but also its exercise are conditioned by clause (c) of the proviso to section 33A(2). An order of assessment cannot be revised by the Commissioner, if an appeal has been preferred against that order to the Tribunal. That remains unaffected by the scope of the appeal preferred to the Tribunal, whether it is restricted by the assessee of his own choice or whether it is restricted by the Tribunal. The relief permissible or granted in the appeal to the Tribunal can have no bearing in determining the scope of the statutory expression “order” in clause (c) so long as it is the order of assessment that has been appealed against.

12. The grant of the relief asked for by the petitioner was beyond the scope of the revisional jurisdiction of the Commissioner that the petitioner invoked in this case. If the petitions are liable to be dismissed on that ground, the orders of the Commissioner dated September 28, 1955, cannot be set aside, even though the Commissioner proceeded on an erroneous basis in dismissing the petitions.

13. The petitions are dismissed. There will, however, be no order as to costs.

14. Petitions dismissed.