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TMI Blog1964 (8) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... objection that no revision lies in the instant case under section 54 of the Act as the order passed by the Commissioner rejecting the revision application filed before him under section 34 is not an order enhancing the assessment or otherwise prejudicial to him (the assessee) . On an examination of the relevant provisions of the Act and decisions bearing on the question, we are of opinion that this preliminary objection should be upheld. We shall now examine the relevant provisions of the Act. Section 29 provides for an assessment based upon a claim for partition. Section 31 provides amongst other things that an assessee can prefer an appeal to the Assistant Commissioner against an order of the Agricultural Income-tax Officer passed under section 29 of the Act. Section 32 provides a right of appeal to the Appellate Tribunal against any order passed by the Assistant Commissioner under section 31 aforesaid. Section 32(7) provides that save as provided in section 54 the orders passed by the Appellate Tribunal on appeal shall be final. Side by side there is also the provision in section 34 under which the Commissioner can call for the records of any proceeding under the Act and re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended that section 34 and section 54 are two separate provisions and the second proviso to section 34 should not be imported into sub-section (1) of section 54. In other words, it was contended on behalf of the petitioner that if a revision petition is filed under section 34 and the Commissioner dismissed the same, it would certainly be an order prejudicial to the assessee within the meaning of section 54 as the Commissioner has declined to entertain the same. It was further contended that the second proviso to section 34 has only a limited operation on the first proviso to section 34 and apart from that, it has no other purpose, and cannot be used as a guide for determining the ambit of the right of revision provided under section 54 of the Act. We see no substance in this contention. In our opinion, the point is directly covered by the decision of the Privy Council in Commissioner of Income-tax v. Tribune Trust [1948] 16 I.T.R. 214 (P.C.) , a case which arose under the analogous provisions of the Indian Income-tax Act of 1922, sections 33 and 66, which contained language similar to the provisions of sections 34 and 54 of Agricultural Income-tax Act. The matter is also directly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts claim. In the mean while in view of the decision of the High Court, assessment for subsequent years were made and completed in accordance therewith. After the decision of the Privy Council, the assessee filed an application to the Commissioner of Income-tax under section 33 that the assessment for the subsequent years might be quashed but the Commissioner rejected the same. Thereupon, the assessee applied to the Commissioner of Income-tax to state a case and refer the same to the High Court under section 66(2) of the Income-tax Act. The Commissioner declined to do so and the assessee moved the High Court for directing the Commissioner to state a case. This was allowed by the High Court and the Commissioner took up the matter to the Privy Council. The Privy Council held that the Commissioner was not bound to state a case within the meaning of section 66(2) of the Act as the order of the Commissioner dismissing the assessee's petition was not an order enhancing the assessment or prejudicial to the assessee within the meaning of section 66(2). The Privy Council did not accept the view of the High Court that when the assessee's application has been dismissed by the Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am Agricultural Income-tax Act. A Bench of the Kerala High Court took the same view with regard to the analogous provision of the Cochin Income-tax Act in Parvathi Sankaran v. Commissioner of Income-tax [1960] 40 I.T.R. 586. The Bench held that an order of the Commissioner dismissing a revision petition filed before him cannot be said to be an order prejudicial to the assessee within the meaning of section 109(2) of the Cochin Income-tax Act so as to entitle the assessee to obtain a reference to the High Court. It is sufficient to mention that in this case reliance was placed upon a later judgment of a Full Bench of five judges of the Madras High Court in Voora Sreeramulu Chetty v. Commissioner of Income-tax [1939] 7 I.T.R. 263 , overruling the earlier Full Bench decision of three judges in Venkatachalam Chettiar v. Commissioner of Income-tax [1935] 3 I.T.R. 55 (F.B.) , already referred to, as authority for the position that an order of dismissal itself amounts to refusal to grant the relief prayed for by the assessee. The Kerala High Court took the view that in view of the decision of the Privy Council in the Tribune case [1948] 16 I.T.R. 214 (P.C.) , the view of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve an authority to the Commissioner to call for the record of any case on his own motion and pass such orders after enquiry as he thought fit. Therefore, if after calling for the record, the Commissioner refused to interfere, the assessee had evidently no statutory right on the authority of which he could apply for a reference to the High Court. It must be conceded that section 33, as it then was, did not give any right to the assessee to move the Commissioner, or impose any obligation upon the latter to do so. Accordingly, their Lordships took the view that it was intended to provide merely an administrative machinery by which a higher executive officer might review the acts of his subordinates and take necessary action on such review. This point did not and could not affect their decision as to the interpretation of the words 'prejudicial order' which was quite independent of the consideration, whether the petitioner had or had not any statutory right to move the Commissioner for review. In fact, their Lordships clarified the position in no ambiguous terms as their following observation shows: 'The Commissioner may act under section 33 with or without the invitation o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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