TMI Blog1983 (2) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... ) even though it was dismissed on 12th September, 1979, as barred by time. In order to assail the correctness of this order the petitioner has taken recourse to arguments both on merits and technicalities. It is urged that the revision having been fixed for hearing on 12th November, 1979, the Commissioner committed an error apparent on the face of the record in dismissing it on 31st October, 1979, on communication of written reply to the query made by the Commissioner as to whether the petitioner had filed an appeal. We, however, do not consider it necessary to examine this aspect as we are satisfied that the other argument advanced, that the Commissioner acted against law in refusing to entertain revision on an erroneous construction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal ; or (b) where the order is pending on an appeal before the Appellate Assistant Commissioner ; or (c) where the order has been made the subject of an appeal to the Commissioner (Appeals) or to the Appellate Tribunal." It is obvious that the answer to the question shall depend on the construction of the expression, " order has been made the subject of an appeal " used in cl. (c). It shall be noticed that the two sub-cls. (b) and (c) of the sub-section use different language. In one the jurisdiction is barred if the appeal is pending whereas in the other if it has been made the subject of an appeal. But the bar imposed by cl. (b) is lifted once the appeal has been decided because the AAC, by virtue of Expln. (2), is an authority subor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce an appeal was filed, entertained and dismissed as barred by time the order passed by subordinate authority stood affirmed and it would amount to an order which has been made the subject of an appeal. According to learned counsel the remedy of the petitioner to approach the Commissioner, therefore, under s. 264 was barred. At the first impression the argument did appear to be attractive. But, on the intention of Legislature and language of the section, we are not inclined to accept it. Appeal, in ordinary sense, means taking the order to a higher authority for examination of its correctness. Where an appeal is dismissed as barred by time or because it was deficiently stamped or it was not presented before the appropriate authority, it ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure obviously found that another alternative remedy less costly was necessary to give relief where the stakes involved were small, and introduced the revisional power again. An assessee can either prefer an appeal to the Appellate Tribunal or he may select the cheaper remedy and apply to the Commissioner to revise the order. If he so elects, if the time prescribed for preferring an appeal has not expired, he must waive his right to prefer an appeal. The object of the sections is clear. The assessee can agitate the validity of the order of the subordinate authority either before the Tribunal or the Commissioner. That was the intention of the legislature, and, in my view, the provisions of the aforesaid two sections clearly bring out the inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld, according to the petitioner's contention, that there was no appeal at all to the Tribunal in the contemplation of law. The legal character of proceeding pursued by an aggrieved assessee would thus depend not on what he really intended it to be, nor even on what the relevant provision of law required it to be, but on the nature of the order which the quasi-judicial authority whom he approaches happens to pass eventually on it. This appears to me too strange a position to accept. There is no warrant for it in the provisions of the Act or under the general law." For taking this view reliance was mainly placed on Champalal Ashara v. CIT [1953] 23 ITR 464 (Bom) and Mohd. Naim Mohd. Alam v. CIT [1951] 19 ITR 58 (All), where it was held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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