1980 (11) TMI 40

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....ppeal before the Tribunal was decided on November 22, 1973. In the revision application filed before the Commissioner, the assessee sought to obtain relief to which, according to it, it was entitled by virtue of the provisions of s. 35C of the I.T. Act, 1961. Such a claim had not been put forth before the ITO nor any ground had been taken in this behalf in the appeals. The Commissioner rejected the revision petition on the ground that the assessment order was made subject to an appeal to the Appellate Tribunal and, therefore, he could not interfere by virtue of the provisions under s. 264(4)(c) of the I.T. Act, 1961. In this writ petition it is contended that as the relief sought before the Commissioner had not been the subject-matter of a....

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.... mind is relevant. Section 264(4) at the relevant time was as follows: "The Commissioner shall not revise any order under this section in the following cases (a) where an appeal against the order lies to the Appellate Assistant Commissioner or to the Appellate Tribunal but has not been made and the time within which such appeal may be made has not expired, or, in the case of an appeal to the Appellate Tribunal, the assessee has not waived his right of appeal ; or (b) where the order is pending on an appeal before the Appellate Assistant Commissioner; or (c) where the order has been made the subject of an appeal to the Appellate Tribunal." There was a similar provision under s. 33A(2) of the Indian I.T. Act, 1922. The scope of the latter....

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....he disposal of the claims preferred in the appeal did not alter the position that the order of assessment was the subject of the appeal. Even if only a portion of an order of assessment is the subject of the appeal to the Tribunal, still the position is that the subject of the appeal to the Tribunal is the order of assessment. To accept the plea of the learned counsel for the petitioner, that the appeals the petitioner preferred to the Tribunal did not prevent the Commissioner from exercising the revisional jurisdiction vested in him by section 33A(2), we have to construe the word order " in clause (c) of the proviso, as the 'relief claimed', and to read clause (c) as if it ran: 'Provided that the Commissioner shall not revise any order un....