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TMI Blog1985 (4) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... ain part of section 34 alone or whether it should be read as explaining the term `prejudicial to the assessee ' in section 60(2) of the Act ? (2) Where a statute provides a right of revision to an assessee by enabling him to seek such revision by an application and he gets no relief in the revision, is it a case in which the order is prejudicial to the assessee ?" Under section 60(2) of the Kerala Agricultural Income-tax Act, hereinafter referred to as " the Act ", an assessee is entitled to require the Commissioner to refer to the High Court any question arising out of an order under section 34 enhancing an assessment or which is " otherwise prejudicial to him ". Section 34 of the Act enables the Commissioner to call for and revise any p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain part of section 34 and not as explaining similar words occurring in section 60(2) of the Act is that had the assessee taken up the order of assessment in appeal under section 31 and in a second appeal under section 32 without success, he could have taken up the same questions in reference under section 60(1), and there is no reason why a similar order passed in revision under section 34 declining to interfere with the assessment shall not be treated as capable of being the subject-matter of a reference under section 60(2) of the Act. This reasoning cannot hold good since section 60(1) enables the assessee or the Commissioner by, application to require the Appellate Tribunal to refer to the High Court any question of law arising out of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification for giving him a new right of appeal ...... Thus reference does not lie from an order under section 33 unless that order is prejudicial to the assessee in the sense that he is in worse position than before the order was made." That decision was followed by the Madras High Court in N. N. Seshadrinathan v. State of Madras [1966] 60 ITR 482 (Mad) [FB], N. S. Kantan v. Agri. ITO [1965] 58 ITR 53 (Mad) and Kathirvelu Nadar v. Commr. of Agrl. I.T. [1968] 68 ITR 786 (Mad). A contrary view was taken by the Madras High Court earlier in the decision in Voora Sreeramulu Chetty v. CIT [1939] 7 ITR 263 (Mad) [FB], which was to the effect (p. 268): " An order which dismisses an application asking for the revision of prejudicial order must be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that this aspect of the matter was not covered by any of the decisions referred to above. He, therefore, submits that in the light of the reference by the Division Bench, this aspect of the matter may also be considered. Apart from the fact that this aspect is not covered by the order of reference, we also find that the counsel is not correct in his submission that this aspect was not considered by any of the decisions referred to above. One of the specific pleas raised by counsel for the assessee unsuccessfully in N. S. Kantan v. Agri. ITO [1965] 58 ITR 53, 55 (Mad) was: " In other words, it was contended on behalf of the petitioner that if revision petition is filed under section 34 and the Commissioner dismissed the same, it wou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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