1998 (6) TMI 26

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....s early as in the year 1965, in the case of N. N. Seshadrinathan v. State of Madras (1966) 60 ITR 482 speaking through a Full Bench has held that an application for revision will not lie to this court against (Mad) (FB) an order made by the Commissioner under section 34 of the Tamil Nadu Agricultural Income Tax Act, if that order is not one which can be regarded as prejudicial to the assessee. While so holding, the court took note of the second proviso to section 34 of the Act which reads as under : "Provided further that an order passed declining to interfere shall not be deemed to be an order prejudicial to the assessee." The Full Bench held after referring to that proviso that : "Whatever might have been the position without the....

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....ment may nevertheless be prejudicial, if in fact there has been prejudice, but what is essential is that there must be prejudice to the assessee by reason of the order made under section 34 of the Act. The second proviso to section 34 of the Act contains the legislative declaration that an order passed by the Commissioner under section 34 of the Act declining to interfere shall not be deemed to be an order prejudicial to the assessee. That declaration has been recorded by the Full Bench as conclusive. When an order is made under section 34 of the Act declining to interfere, all that happens is that the order sought to be impugned remains intact. Nothing is added thereto and nothing is subtracted therefrom. The position of the assessee do....

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....tion after the order was made. The decision of the Special Bench of the court in Voora Sreeramulu Chetty is at variance with the decision of the Privy Council rendered later in the case of the year 1948. The Full Bench has, therefore, held that the decision of this court in the case of Voora Sreeramulu Chetty was no longer good law. The test laid down by the Privy Council is as to whether by the impugned order, the assessee is in a worse position after the order was made. The second proviso to section 34 of the Act declares that he shall not be deemed to be in a worse position merely because the order of the lower authority is not interfered with. We, therefore, see no substance in the argument that the decision of the Full Bench require....