Subject of an appeal requires an appellate merits decision, not mere filing; revision jurisdiction remains available.

Whether an order is "the subject of an appeal" under proviso (b) to section 25(1) of the Wealth-tax Act turns on whether the appellate process produced an effective merits determination; mere filing of an appeal or its subsequent permitted withdrawal/dismissal for non-prosecution does not convert the filing into an appellate decision on merits. The court compared analogous interpretation under the Income-tax provision, considered the discretionary nature of withdrawal, and held that because the Tribunal did not decide the appeal on merits, the Commissioner's revisional jurisdiction was not barred and the assessee's revision could be entertained.

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Issues: (i) Whether, for the purposes of proviso (b) to sub-section (1) of section 25 of the Wealth-tax Act, 1957, an order is "the subject of an appeal" to the Appellate Tribunal merely when a competent appeal is filed, or only when the appellate authority has dealt with and decided the merits of the order appealed against.

Analysis: The issue arises in the context of the scheme of sections 24 and 25 of the Wealth-tax Act, 1957, which give an assessee alternative remedies of appeal to the Appellate Tribunal or revision by the Commissioner; proviso (b) to section 25(1) limits the Commissioner's revisional power where the order sought to be revised "is the subject of an appeal". Section 24(6) permits the Tribunal to refer valuation disputes to valuers and the provisos permit condonation of delay. Comparative construction with the corresponding proviso in section 33A of the Indian Income-tax Act (as judicially interpreted) shows that an order is regardable as the subject of an appeal only when the appeal has become the subject-matter of an effective appellate determination on merits. Authorities on withdrawal of appeals under tax statutes establish that withdrawal is not an absolute right of the appellant and lies in the appellate authority's discretion, but a permitted withdrawal does not convert the prior appellate filing into an appellate decision on merits. Applying these principles, where an appeal was validly filed but subsequently permitted to be withdrawn by the Tribunal and dismissed for non-prosecution on that basis, the appellate process did not reach a merits decision and therefore the order appealed against was not "the subject of an appeal" within proviso (b).

Conclusion: The order of the Appellate Assistant Commissioner was not the subject of an appeal before the Appellate Tribunal for the purposes of proviso (b) to section 25(1) of the Wealth-tax Act, 1957; consequently the Commissioner was not precluded by proviso (b) from entertaining the assessee's revision applications. The decision is in favour of the assessee.

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