Withdrawn Tribunal appeal does not bar Gift-tax revision when no merits decision was made

A withdrawn or abortive appeal to the Tribunal does not bar revision under the Gift-tax Act unless the appeal was effectively heard and decided on merits, or at least on limitation. An appeal that is permitted to be withdrawn without adjudication is not treated as the subject of an appeal for this purpose. The fact that the revision application was filed on the same day as the withdrawal request was immaterial because no appeal remained pending when the Commissioner considered the matter. The Commissioner was therefore bound to entertain the revision and decide it on merits.

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Issues: Whether an appeal to the Tribunal, which was permitted to be withdrawn without any decision on merits, could be treated as having been the subject of an appeal to the Tribunal so as to bar a revision under the Gift-tax Act.

Analysis: The relevant language barring revision where the matter has been the subject of an appeal to the Tribunal was construed to mean an effective appeal, that is, an appeal resulting in a decision on merits or at least on limitation. A withdrawn or abortive appeal, in which no adjudication has taken place, does not satisfy that requirement. The Court treated the fact that the revision application had been filed on the same day as the withdrawal request as immaterial, because by the time the Commissioner decided the revision no appeal was pending. The Court also emphasised that the assessee's choice between appeal and revision should not be defeated on technical grounds once the appeal had been withdrawn before any merits decision.

Conclusion: The prior withdrawn appeal did not bar the revision, and the Commissioner was bound to entertain and decide the revision on merits.

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