Admitted but time-barred appeal still bars revision where the assessee chose the appellate remedy under the Income-tax Act.

An admitted appeal to the Income-tax Appellate Tribunal, even if later dismissed as time-barred, still amounts to the appellate order of the Appellate Assistant Commissioner being made the subject of an appeal. The statutory scheme under the Income-tax Act, 1922 treated appeal to the Tribunal and revision to the Commissioner as alternative remedies, so choosing one excluded the other. Because the assessee had in fact preferred, and the Tribunal had admitted and disposed of, the appeal, revision under section 33A(2)(c) was incompetent. The refusal to entertain the revision was therefore upheld, and the writ petition failed.

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Issues: Whether an appeal to the Income-tax Appellate Tribunal, though dismissed as time-barred after admission, constituted the order of the Appellate Assistant Commissioner being made the subject of an appeal so as to bar revision under section 33A(2)(c) of the Income-tax Act, 1922.

Analysis: The statutory scheme gave an assessee two alternative remedies against the appellate order of the Appellate Assistant Commissioner, namely an appeal to the Tribunal or a revision to the Commissioner, and the exercise of one excluded the other. Section 33(4) empowered the Tribunal to pass such orders as it thought fit, and section 33(6) gave finality to its appellate orders, showing that the Tribunal could dispose of an admitted appeal on limitation as well as on merits. The decisive fact was that the assessee had in fact preferred an appeal to the Tribunal, the appeal was admitted, and it was heard and disposed of by the Tribunal; the legal character of that step did not depend on whether the Tribunal ultimately examined the merits. An admitted but incompetent or time-barred appeal was still an appeal for the purposes of the Act, and the dismissal on limitation did not erase the fact that the order of the Appellate Assistant Commissioner had been made the subject of an appeal. The revision was therefore incompetent under section 33A(2)(c).

Conclusion: The revision was barred, and the refusal to entertain it was upheld. The writ petition failed.

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