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TMI Blog1971 (11) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... cultural Income-tax Officer was of the view that the notional income which the petitioner should be deemed to have earned by reason of the occupation of two bungalows in the estate by the partners was taxable income and included the same in the assessable income of the petitioner for that year. Similar assessments were made for the assessment years 1965-66, 1966-67 and 1967-68. For the year under consideration, namely, 1964-65, the petitioner, who was confronted with a demand for tax on the above income, as if it was agricultural income, did not agitate the matter or that portion of the order in appeal which he filed as against the original order of assessment for the year, passed by the assessing authority on July 15, 1966. It appears, how ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 32 of the Act. On the date when the revision petition was presented by the petitioner before the Commissioner of Income-tax, the Appellate Tribunal has disposed of the matter. The subject-matter before the Appellate Assistant Commissioner as well as the Appellate Tribunal were matters other than the subject whether the notional income found by the original authority in relation to the occupation of the partners of the petitioner-firm of two of the properties of the estate should or should not be brought to tax as agricultural income. When the subject was taken up by the Commissioner as the revisional authority under section 34 of the Act, he was of the view that such income was assessable income. He also held that as the petitioner d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icultural operations. If, as a matter of fact, the property is not used or utilised for the purpose of earning, then no income arises at all. It is only income which is assessable to tax under the taxing statutes unless there are express provisions to the contrary. In so far as the agricultural income-tax is concerned, it is only income from agricultural property that could be brought into the net of taxation. I am unable to uphold the opinion of the Commissioner that income is said to have been derived on the only ground that a property within the agricultural estate is in the occupation of its proprietors or partners. As no income is derived by such use of the property and as the incidence of tax is the earning of income, I am unable to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s there is express language which provides for such a relief courts cannot vest such a power is an authority and enable him to deal with the subject-matter as if he is an appellate court or a revisional authority. It the instant case, the statute provides in a negative fashion and refers to the powers of the Commissioner in revision. He shall not revise an order under sub-section (1) of of section 34, if an appeal against the order has been made to the Appellate Tribunal during the pendency of the same. The statute is silent as to whether the power of revision of the Commissioner is still available to him even if the Appellate Tribunal has disposed of the appeal before it. In the absence of anything to indicate in the main section itself wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsider its regularity, he cannot at a late stage and particularly after the appellate authority or the Tribunal dealt with the other appeals before it, approach the Commissioner for relief under section 34 of the Act. If this contention of situation as urged is accepted it would create a very anomalous situation. A litigant consciously avoids to attack a part of the order which he considers is affecting his rights. Thereafter, the appellate authority considers the subject-matter brought before it and finalises the situation. Then certain supervening, events prompt the litigant to reopen, if possible, such final assessments in the eye of law ; a trial is made by him through another channel to obtain relief. At that stage it is appropriate f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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