9911796707
TMI Blog1971 (11) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessments 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, however, that for the years 1965-66 to 1967-68, the petitioner not only filed appeals against the orders of assessment but also canvassed the propriety of the inclusion of similar income as above as assessable agricultural income. When the latter process was carried up to the stage of the Appellate Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 did not agitate the question whether such notional income could be brought to tax at all as agricultural income, he cannot give a decision on it. In this view, he dismissed the revision petition. It is as against this the present writ petition has been filed. The contention of Mr. Swaminathan, learned co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 sustain that portion of the order. But, the point is whether the petitioner is entitled to the relief asked for ? Under section 34, a revision is provided by the statute to the Commissioner under certain stated circumstances. Section 34(2) provides that the Commissioner shall not revise any order under sub- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 which enables the Commissioner to entertain and deal with a matter in revision after a disposal of the subject-matter by the Appellate Tribunal, one cannot find a provision like that so as to create a new revisional jurisdiction in the Commissioner. Again, the petitioner when he filed the first appeal befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uation. 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 for that authority who is approached for relief to say : " You were never aggrieved against that part of the order at any time before. You took it for granted that your rights were not affected. You were not aggrieved against the manner of the disposal of the matter. You are, therefore, precluded from seekin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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