Narayana Pai, J.
1. The petitioner's father, against whom an order of assessment had been made under the Mysore Agricultural Income-tax Act preferred an appeal to the Deputy Commissioner of Agricultural Income-tax, on the failure of which a further appeal was filed before the Commissioner of Agricultural Income-tax. The father having died, the petitioner is now continuing the proceedings.
2. It appears that, on the papers of the appeal presented to the Commissioner, a note had been made by one of the clerks or officials of the Commissioner's office that the appeal was incompetent for the reason that the order appealed from had neither enhanced the tax liability nor imposed any penalty. This was one of the conditions precedent for a competent appeal to the Commissioner under section 34 of the Act as it stood before the enactment.
3. Before the Commissioner could apply his mind to the appeal, the Act got amended. One of the major changes made by the amendment was giving a right of appeal to an Appellate Tribunal in the place of the Commissioner. To deal with appeals and revision petitions then pending before Act (Mysore Act 29 of 1963). That sub-section reads as follows :
'(1) All appeals and applications for revision presented under sections 34 and 35 of the principal Act, before the amendment of the said sections by this Act, and pending before the Commissioner shall stand transferred to the Appellate Tribunal, and shall be disposed of by the said Tribunal as if the said appeals and applications for revision were appeals preferred to the said Tribunal under section 34 of the principal Act as amendment by this Act.'
4. Section 34 as amended provided for appeal to the Appellate Tribunal and did not contain any such conditions as to enhancement of tax or imposition of liability as a condition precedent to the maintainability of the appeal.
5. But the Appellate Tribunal dismissed the appeal in limine taking the view that the appeal which was not maintainable by reason of the amendment nor could the Appellate Tribunal treat the same as an appeal filed before it.
6. Thereupon, the petitioner approached this court with a writ petition which he later withdrew, because it was observed that he should first exhaust the other available remedies, viz., that of asking the Tribunal to rectify its previous order or review the same.
7. Once again the Tribunal has dismissed the application of the petitioner for reconsideration stating that it was their considered opinion that it was not open to the petitioner to urge that its previous order was wrong on the ground that there was no error apparent on the face of the records.
8. Once again the petitioner has approached this court with this writ petition.
9. We have no doubt whatever that the view taken by the Tribunal on the first occasion is wholly unsustainable.
10. The very section which directs the transfer of appeals and revision petitions on the file of the Commissioner to that of the Tribunal expressly states that upon such transfer those matters shall be dealt with by the Tribunal as if they were appeals presented to it under section 34 as amended. Once they are so treated, there is no alternative for the Tribunal but to hear the same upon merits. Even assuming that the appeals which were not maintainable before the Commissioner did not change their character. The obvious position is that the question of maintainability or otherwise ceased to be available on their being transferred to the Tribunal's file. Secondly, it should be remembered that if the appeal was not maintainable the Commissioner had the discretion to treat as revision petition and even if the matter is to be regarded as having stood transferred to the Tribunal as if it had been a revision on the file of the Commissioner, upon such transfer the Tribunal was bound to treat it as if it was an appeal presented to itself under the amended section 34.
11. We, therefore, set aside both the orders of the Tribunal dated May 27, 1964, and February 2, 1967, and direct the Tribunal to take the appeal on file and dispose it of on merits. No costs.