TMI Blog1965 (9) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... Hindu family in the year 1959. On November 29, 1959, the assessee settled on his wife an extent of 26 acres 62 cents of land belonging to himself and his minor son out of a total extent of 281 acres 51 cents. Four months later there was a partition of the property between the assessee and his son. For the assessment year 1961-62, the assessee submitted a composition application to the concerned Income-tax Officer in which he sought to exclude the property that was settled on his wife in November, 1959. At the same time his wife filed another composition application in regard to the property that was given to her under the settlement deed. The Income-tax Officer thought that the property gifted to the wife should be included in the composit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment or otherwise prejudicial to him may prefer an application to the High Court against the order on the ground that the Appellate Tribunal or, as the case may be, the Commissioner has either decided erroneously or failed to decide any question of law. The other provisions of the section are not quite relevant in the context of this enquiry and, therefore, we may safely omit them. Since it is only an order under section 34 enhancing the assessment or otherwise prejudicial to him that is subject to revision under this section we have now to turn to the provisions of section 34 to understand the import of this expression or otherwise prejudicial to him. Section 34, omitting the unnecessary portion, runs as follows: 34. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee. But that does not make any difference to the interpretation of this section since it is only an order otherwise prejudicial to him within the connotation of section 34 that is revisable. Section 34 has to be read with section 54 because it is orders passed under section 34 that are revisable under section 54. Having regard to the language of the second proviso to section 34, there can be little doubt that an order of the Commissioner declining to interfere with that of the inferior tribunal cannot be termed to be one otherwise prejudicial to the assessee so as to fall within the sweep and range of section 54 of the Act. The second proviso has put the matter beyond controversy. Even without the existence of that proviso, the resu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at an order made by the Commissioner under section 33 can only be said to be prejudicial to the assessee when he is, as a result of it, in a different and worse position than that in which he was placed by the order under review. If the assessee has a complaint against any assessment or order made by a subordinate officer, he has the appropriate and specific remedy which the Act provides. The Commissioner may act under section 33 with or without the invitation of the assessee; if he does so without invitation, it is clear that, if he does nothing to worsen the position of the assessee, the latter can acquire no right; the review may be a purely departmental matter of which the assessee knows nothing. If, on the other hand, the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of the Commissioner to one of prejudice to him. We are conscious of the fact that there is no express reference to Voora Sreeramulu Chetty v. Commissioner of Income-tax [1939] 7 I.T.R. 263 (F.B.) , but there can be little doubt that it is this case their Lordships had in mind when they said that though it was not necessary for them to decide that point they still thought, having regard to the conflict that existed in India on this question, that it was desirable to express themselves on that question. It is worthy to note that these two decisions are referred to in the judgment of the Lahore High Court which was taken in appeal to the Judicial Committee in Commissioner of Income-tax v. Tribune Trust, Lahore [1948] 16 I.T.R. 214 (P ..... X X X X Extracts X X X X X X X X Extracts X X X X
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