9911796707
TMI Blog1971 (6) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... 796.49 for the assessment year 1961-62. The case of the petitioner is that the income is not taxable agricultural income as it related to the proceeds of sale of timber trees of spontaneous growth. The Agricultural Income-tax Officer did not accept the contention of the petitioner and even so the Assistant Commissioner of Agricultural Income-tax, Ootacamund. The Appellate Assistant Commissioner relied upon a decision of the Appellate Tribunal in A.T.A. No. 82 of 1961 dated August 17, 1962, declaring that the income from the sale of trees of spontaneous growth was agricultural income. I may immediately state that this view of the Appellate Tribunal has been dissented from by this court in Ouchterlony Valley Estates (1938) Ltd. v. Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion the present writ petition has been filed. I am constrained to point out that the decision relied upon by the Commissioner of Agricultural Income-tax has no application at all to the present case. That was a case where the Division Bench as well as the Full Bench of this court were considering the meaning of the expression " order prejudicial to the assessee " which appears in the second proviso to sub-section (1) of section 34 of the Act. That has absolutely no bearing on the power of the Commissioner to entertain an application for revision and pass orders thereon and the conditions under which he could exercise such powers of revision. This is dealt with in sub-section (2) of section 34 and hence the reliance placed by the learned Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f section 34, if no such appeal has been filed to the Appellate Tribunal by the aggrieved person against the order of any subordinate authority. This appears to be so clear from a fair reading of the text of the clause. Clause (b) injuncts the Commissioner from entertaining a revision petition if such an appeal has been filed to the Appellate Tribunal and the same is pending. With the above background as to the statutory provisions regarding the entertainability and disposal of revision petitions before the Commissioner, it is urged by the learned counsel for the petitioner that the Commissioner has refused to exercise jurisdiction properly vested in him in law in having so summarily rejected her revision petition without disposing it of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies for relief that a proceeding by way of revision is thought of by the legislature and in such circumstances a public duty is imposed on the Commissioner not only to entertain such application, but to deal with the same in accordance with law, after giving the aggrieved party a reasonable opportunity of being heard. I am unable to agree with the learned Government Pleader that the word " may " in the instant case should be interpreted literally and ought not to be understood as casting a public duty on the Commissioner to entertain the revision petition and pass the necessary orders thereon. In the peculiar circumstances of this case, I am inclined to hold that, following the well established rule of prudence that in some cases the word " ..... X X X X Extracts X X X X X X X X Extracts X X X X
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