Chandrakantaraj Urs, J.
1.The petitioner, Hindustan Aeronautics Limited, is an assessee under the I.T. Act, 1961 (hereinafter referred to as 'the Act').
2. For the assessment year 1970-71, relating to the financial year ending March 31, 1969, the petitioner filed an appeal before the AAC against the assessment order of the ITO. The appeal was on several grounds relating to several aspects of the assessments order with which the assessee was aggrieved. The appeal came to be partly allowed and partly disallowed by the AAC by his order dated October 27, 1976. The assesses-petitioner filed an appeal against the order of the AAC, to the extent the appeal was disallowed, before the Tribunal at Bangalore. The appeal before the Tribunal came to be withdrawn with the permission of the Tribunal on May 9, 1977, and on May 17, 1977, a revision application came to be filed under s. 264 of the Act before the Commissioner of Income-tax, Karnataka, Bangalore - the respondent herein - against the order of the AAC to be extent the assesses-petitioner was dissatisfied with that order. In the meanwhile, the department had filed an appeal before the Tribunal against the order of the AAC in so far as it related to some aspects of the success of the assessee. That appeal of the department came to be dismissed by the Tribunal on March 28, 1978. The respondent-Commissioner by his order dated December 22, 1978, having regard to sub-s. (4)(c) of s. 264 of the Act and following the ruling of the Kerala High Court in the case of Mohammed Haneef v. ITO  Tax LR 645, dismissed the revision petitioner of the assesses-petitioner as not competent and maintainable. Having no other alternative remedy, the petitioner has approached this court under art. 226 of the Constitution for redress.
3. It is the petitioner's contention that sub-s. (4)(c) of s. 264 of the Act is no bar to the assessee to maintain a revision petition against the order of the AAC in so far as it affected the assessee even though the department may subject that order in so far as it favoured the assessee to an appeal before the Tribunal notwithstanding the decision of the Kerala High Court in Mohammed Haneef's case  Tax LR 645, which has not laid down the correct law in regard to the scope and ambit of the revisional power of the Commissioner under s. 264 of the Act.
4. It is also the petitioner's contention that it was denied an opportunity of hearing on November 20, 1978, and had it been given one, then it would have brought to be notice of the respondent-Commissioner the circular instructions of the CBDT bearing F. No. 6/52/68-I.T.J., dated July 30, 1970, which clearly explained that a departmental appeal to the Tribunal against an assessment order would not deprive the assessee of his right to move the Commissioner under s. 264 of the Act and the said instructions being binding in nature on the Commissioner, he had wrongfully declined to exercise his jurisdiction.
5. In so far as the first to the contentions is concerned, Shri G. Sarangan, learned counsel for the petitioner, has analysed the language of the provisions, of s. 264 of the Act and submitted that the words 'assessment order' occurring in sub-s. (4)(c) of s. 264 of the Act should be read down or read restrictedly to mean and include that part of an assessment order which is made the subject of an appeal before the Commissioner (Appeals) or the Tribunal. He has emphasised the scheme of appeals and revision in the act and has advanced forceful arguments to demonstrate that the decision of the Kerala High Court in Mohammed Haneef's case  Tax LR 645 has not correctly laid down the law. But the Kerala High Court explained the scope of sub-s. (4)(c) of s. 264 of the Act following a Division Bench ruling of the Madras High Court in the case of C. Gnanasundara Nayagar v. CIT  41 ITR 375. In the said case, the learned judges were construing s. 33A(2) of the Indian I.T. Act, 1922, corresponding to s. 264 of the Act.
6. Nearly the same arguments as advanced by Sri G. Sarangan before me were advanced by the counsel for the assessee there. The learned judges, however, rejected the arguments and refused to construed the words 'assessment order' restrictedly. I am convinced that that decision did not lay down the correct law. I say so with the utmost respect to the learned judges as many aspects underlying the scheme of the I.T. Act and a proper analysis as to what constitutes an appealable assessment order whether affecting the assessee or the department was never argued before them. None the less I do not feel compelled to give reasons for my dissent on the facts of the case on hand, as the petitioner herein is bound to succeed on the second of the contentions. It is also possible that the Legislature itself may clear the doubt in regard to the interpretation of sub-s. (4)(c) of s. 264 of the Act by suitable amendment in place of conflicting judicial pronouncements.
7. Whether the petitioner should have been heard on November 20, 1978, losses some of its importance. Whether the revision petitioner ought to bring to the notice of the respondent-Commissioner the circular instructions of the CBDT is of little consequence. It should be presumed that all the Commissioners of Income-tax in the country are aware of the instructions issued by the Board as they are all subordinate authorities in terms of s. 119 of the Act. The circular instructions relied upon by the petitioner is as follows :
'XVI/11/69 - Scope of proviso (c) to section 33A(2) of the Income-tax Act, 1922, and corresponding sub-section (4)(c) of section 264 of the Income-tax Act, 1961.
The scope of the above-noted provisions was considered by the Ministry of Law in a recent case, vide copy of their note dated May 18, 1978 (printed below). They have held that the above-noted provision has to be construed so as to mean that the jurisdiction of the Commissioner to entertain a revision petition from an assessee against an order could be barred only if an appeal against that order has been preferred by the assessee before the Tribunal and not where such an appeal has been preferred by the department. This legal position is brought to your notice.
(F. No. 6/52/68 - ITJ dated the July 30, 1970, from the CBDT note recorded by the Ministry of Law dated May 18, 1970)'
8. From the above, it is clear, that s. 264 of the Act has been understood by the Board and the Law Ministry in a manner different from the manner in which the High Court of Madras and the High Court of Kerala have construed the same. It is true that in interpreting statutes the High Court are not bound or controlled by what a Government agency may say. The courts may ignore the views of the Government or its agency. But having regard to the mandatory nature of the language of s. 119 of the Act and the instant case not being covered by the exceptions in the proviso to sub-s. (1) of s. 119, the respondent-Commissioner was bound to entertain the revision application of the petitioner, notwithstanding the decision of the Kerala High Court on the subject as he was not bound by it. Thus, there is failure on the part of the respondent to exercise jurisdiction vested in him in passing the impugned order and, therefore, that order is liable to be set aside.
9. I may further observe that on the date the revision petition was dismissed, i.e., on December 22, 1978, the AAC's order appealed against by the department before the Tribunal was not the subject of an appeal before the Tribunal as the same had been dismissed on March 28, 1978, nearly 9 months before.
10. In the result, the rule is made absolute. The impugned order is set aside and the matter remitted to the respondents with a direction to entertain the revision application of the petitioner pertaining to the assessment year 1970-71 and dispose of the same on merits in accordance with law.
11. There will be no order as to costs.