Time-barred appeals are not treated as effective appeals; revisional jurisdiction can be compelled by Specific Relief remedy.

An appeal rejected as time-barred and not admitted for consideration does not render the underlying assessment order "the subject of an appeal" for the purpose of proviso (c) to Section 33A(2); the statutory scheme requires an effective, admitted appeal for that status and therefore such rejected appeals do not impede consideration of revision applications. Where a commissioner has wrongfully declined to exercise vested revisional jurisdiction, the remedy under the Specific Relief Act permits the court to compel performance of that statutory duty, requiring the commissioner to hear and determine valid revision applications on their merits.

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Issues: (i) Whether an order of the Appellate Assistant Commissioner which was the subject of an appeal that was rejected as time-barred can be treated as "the order has been made the subject of an appeal to the Appellate Tribunal" within the meaning of proviso (c) to Section 33A(2) of the Indian Income tax Act; (ii) Whether an assessee may seek relief under Section 45 of the Specific Relief Act to compel the Commissioner to exercise revisional jurisdiction where remedies under the Income tax Act exist.

Issue (i): Whether an appeal rejected as time barred constitutes the order being "made the subject of an appeal to the Appellate Tribunal" for the purpose of proviso (c) to Section 33A(2).

Analysis: The statutory scheme distinguishes between an appeal properly admitted and an appeal merely presented but rejected for delay; Section 33(2A) contemplates admission of appeals after the prescribed period only where sufficient cause is shown. Precedent establishes that an appeal dismissed as barred by limitation is not an appeal within comparable statutory phrases. An order is the "subject of an appeal" only when an effective appeal exists on the file and has been admitted for consideration on merits.

Conclusion: In favour of the assessee. An appeal rejected as time barred and not admitted cannot be treated as the order being "made the subject of an appeal to the Appellate Tribunal" under proviso (c) to Section 33A(2).

Issue (ii): Whether Section 45 of the Specific Relief Act may be invoked to compel the Commissioner to exercise his statutory revisional jurisdiction where the Income tax Act provides remedies.

Analysis: The existence of comprehensive remedies under the Income tax Act does not preclude a court from ordering performance of a statutory duty by an authority when the assessee has validly invoked the remedy provided by the Act and the authority declines to perform the statutory function. Section 45 is directed to compelling discharge of statutory duties and is available where an authority refuses to exercise a vested statutory power in accordance with law.

Conclusion: In favour of the assessee. Section 45 of the Specific Relief Act can be invoked to compel the Commissioner to hear and determine valid revision applications where the Commissioner has wrongly declined to exercise revisional jurisdiction.

Final Conclusion: The Commissioner is required to hear and determine the revision applications on their merits because appeals that were rejected as time barred do not render the subordinate orders "the subject of an appeal" under proviso (c) to Section 33A(2), and the remedy under Section 45 of the Specific Relief Act is available to compel the statutory exercise of revisional jurisdiction.

Ratio Decidendi: An appeal that was rejected as out of time and not admitted is not an effective appeal within the meaning of proviso (c) to Section 33A(2), and where the Commissioner has wrongfully declined to exercise revisional jurisdiction the court may compel him to hear and determine revision applications under Section 45 of the Specific Relief Act.

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