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TMI Blog1948 (7) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... were allowed in part, but the petitioner did not get the entire relief he claimed. Against the said orders the petitioner preferred Income-tax Appeals Nos. 3302, 3303, 3299, 3300 and 3301 of 1946-47 to the Income-tax Appellate Tribunal, Madras Bench. The Appellate Tribunal dismissed the appeals as time-barred. On 15th December, 1947, the petitioner applied to the Commissioner of Income-tax, Madras, under Section 33A(2) of the Indian Income-tax Act for revising the orders of the Appellate Assistant Commissioner, Coimbatore. This was numbered as I.T.R. Nos. 78 to 82 of 1947-48 on the file of the Commissioner of Income-tax, Madras. On 23rd December, 1947, the Commissioner of Income-tax, declined to entertain the said applications on the ground that the orders of the Appellate Assistant Commissioner had already been made the subject of appeals to the Appellate Tribunal. The petitioner seeks the aid of this Court to compel the respondent to hear and determine the revisions, which he was bound in law to do. The learned counsel for the Commissioner of Income-tax raised three contentions against the maintainability of this application: (1) that the revisions were not maintainable again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, the time within which such appeal may be made has not expired, or (b) the order is pending on an appeal before the Appellate Assistant Commissioner or has been made the subject of an appeal to the Appellate Tribunal, or (c) the order has been made more than one year previously. (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, 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e relief where the stakes involved were small, and introduced the revisional power again. An assessee can either prefer an appeal to the Appellate Tribunal or he may select the cheaper remedy and apply to the Commissioner to revise the order. If he so elects, if the time prescribed for preferring an appeal has not expired, he must waive his right to prefer an appeal. The object of the sections is clear. The assessee can agitate the validity of the order of the subordinate authority either before the Tribunal or the Commissioner. That was the intention of the legislature, and, in my view, the provisions of the aforesaid two sections clearly bring out the intention. The learned counsel for the Commissioner contended that the same consequences would follow even if an appeal was failed and dismissed as out of time. If this contention is accepted, it will defeat the purpose of the enactment and I cannot accept the same unless the words used in the section clearly support such contention. Mr. Rama Rao Saheb contends that if an assessee exercises his option to prefer an appeal and files an appeal, whether it is admitted or not the order is subject of an appeal to the Appellate Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome-tax Act could be invoked. If, on the other hand, the order of the Income-tax Assistant Commissioner was not an order within the meaning of those sections, the petitioner was not entitled to the relief he asked for. The learned judges held that the order of the Assistant Commissioner rejecting the appeal as one filed beyond time was an order refusing to admit the appeal and, therefore the Assistant Commissioner's order could not be construed as one passed under Section 31. The next case relied upon by the learned counsel for the petitioner is Mahant Krishna Dayal Gir v. Syed Abdul Gaffar [1935] 3 I.T.R. 200; I.L.R. 57 All. 971. The question that arose for consideration in that case was whether a sale should be set aside on the ground of misdescription. Section 33 of the Bengal Land Revenue Sales Act says that no sale shall be annulled unless the ground relied upon shall have been declared and specified in an appeal made to the Commissioner under Section 25 of the Act. Under Section 25 of the Act an appeal to the Commissioner shall be presented within sixty days of the sale, but in that case the appeal was presented after the expiry of sixty days. The learned Judges held t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerned was admitted, which fact is stated in the judgment, the observations should not be made to apply to the question that I am called upon to consider. These observations must be understood with reference to the special arguments which were addressed to their Lordships in connection with meaning of the term 'where there has been an appeal.' For the aforesaid reasons I hold that the orders of the Assistant Commissioner have not been made the subject of an appeal to the Appellate Tribunal. If so, it is incumbent on the Commissioner to dispose of the revisions filed before him on the merits in accordance with law. There is also not much force in the second contention the learned counsel for the Commissioner. He argued that the petitioner had other specific and adequate legal remedy, as he could have filed the appeal to the Appellate Tribunal in time. It is true that the appellant could have preferred an appeal to the Appellate Tribunal against the orders of the Assistant Commissioner within six weeks from the said orders. But, under the Act, they were not bound to do so. They had alternative remedies and they are entitled to have resort to either of them, unless t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been set aside. In the course of the judgment their Lordships reviewed the various sections of the Act and pointed out that it exhaustively defined the obligations and the remedies of the taxpayer and that it would be incompatible with the scheme of the Act that he should have a collateral right, necessarily vague and undefined, founded on the principle of equity and good conscience. That decision does neither support the argument of the learned counsel directly, nor even remotely throw any light on his argument. The Act may be self-contained; it may provide in a comprehensive manner the rights and the remedies of the parties. If a party is aggrieved by an order under the provisions of the Act, he will have to resort to the remedy provided thereunder. But if a party takes the remedy provided by the Act in strict conformity thereof, but the Tribunal constituted under the Act refuses to discharges its duties provided by the same Act, it is not open to the Tribunal or the authority to say that he cannot be compelled to discharge his statutory functions. Section 45 is extended only to govern such cases and to compel officers to discharge their statutory duties. I therefore also re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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