The petitioner seeks a writ of mandamus to compel the commissioner of Income-tax, Hyderabad, to hear and determine on merits the revision filed by it against the order dated January 13, 1960, of the Appellate Assistant Commissioner of Income-tax, Guntur, who affirmed the assessment of the Income-tax Officer, Guntur, and dismissed the petitioners appeal. The facts are not in dispute and lie within a brief compass. The petitioner as a tracer in tobaco has been an income-tax assessee. In respect of the assessment year 1958-59, there arose a difference between the petitioner and the Income-tax Officer, Guntur, regarding the inclusion of a sum of Rs. 14,000 in the petitioners return. The Income-tax Officer eventually held that this sum of money was the petitioners undisclosed income and had, therefore, to be added to the income shown in his return for the purpose of computing the income-tax payable by him. An assessment order on this basis was made by the Income-tax Officer on September 26, 1959. The petitioner preferred an appeal to the Appellant Assistant Commissioner of Income-tax, Guntur. That appeal was duly heard and dismissed on merits on January 13, 1960, and a copy of the order was communicated to the petitioner on January 21, 1960. The petitioner preferred an appeal to the Income-tax Appellate Tribunal, Hyderabad, in April, 1960. This appeal was admitted, and after giving both parties an opportunity of being heard, the Tribunal dismiss, it in December, 1960, on the ground that it was time-barred. Thereafter, on January 19, 1961, the petitioner preferred a revision to the respondent-commissioner of Income-tax against the order of the Appellate Assistant Commissioner, Guntur. The respondent by his order dated February 24, 1961, rejected the revision as incompetent. in view of clause (c) of the first proviso to sub-section (2) of section 33A of the income-tax Act (XI of 1922) (hereinafter referred to as the Act). The case of the petitioner is that this provision of the Act has no application to his case, because the Income-tax Appellate Tribunal did not decide his appeal on merits, but dismissed it on the ground of limitation. According to him, a time-bared appeal is no appeal in the eye of law. The order of the Appellate Assistant Commissioner cannot therefore be considered to have been made the subject of an appeal to the Tribunal so as to attract the operation of clause (c) of the first proviso to sub-section (2) of section 33A of the Act. This is the reasoning on which the petitioner seeks to sustain his claim to a writ of mandamus. The respondent counters the Tribunal and a date was fixed for its hearing and notice thereof was given to both parties and the appeal was eventually dismissed at the hearing as time-beard. The appeal was directed against the order of the Appellate Assistant Commissioner and it is, therefore, untenable to say that his order was not made the subject of the appeal to the Tribunal. The respondent was consequently precluded by the provisions of sections 33(2) of the Act from entertaining the petitioners revision. The respondent cannot be compelled to do what the express statute forbids him to do. A writ of mandamus cannot therefore be issued in favour of the petitioner.
The point that arises for determination is, whether the petitioner had made the order of the Appellate Assistant Commissioner, the subject of an appeal to the Income-tax Appellate Tribunal. It will be useful before proceeding further to set out the relevant provisions of the Act, which have a bearing on the question for determination :
33. (1) Any assessee objecting to an order passed by an Appellate Assistant Commissioner, under section 28 or section 31 may appeal to the Appellate Tribunal within sixty days of the date on which such order is communicated to him ...
(2A) The Tribunal may admit an appeal after the expiry of the sixty days referred to in sub-sections (1) and (2) if it is satisfied that there was sufficient cause for not presenting it within that period....
(4) The Appellate Tribunal may, after giving both parties to the appeal as opportunity of being heard, pass such orders thereon as it thinks fit, and shall communicator any such orders to the assessee and to the commissioner...
(6) save as provided in section 66, orders passed by the Appellate Tribunal on appeal shall be final.
33A. (1) The Commissioner may of his own motion call for the record of any proceeding under this Act in which an order has been passed by any authority subordinate to him and any may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act, as may pass such order thereon, not being an order prejudicial to the assessee, as he thinks fit :
Provided that, the Commissioner shall not revise any order under this sub-section if -
(a) Where an appeal against the order lies to the Appellate Assistant Commissioner or to the Appellate Tribunal, the time within which such appeal may be made has not expired, or
(b) the order is pending on an appeal before the Appellate Assistant Commissioner or has been made the subject of an appeal to the Appellate Tribunal, or
(c) the order has been made more than one year previously.
(2) The Commissioner may, on application by an assessee for revision of an order under this act passed by any authority subordinate to the commissioner, made within one year from the date of the order (or within such further period as the Commissioner may think fit to allow on being satisfied that the assessee was prevented by sufficient cause from making the application within that period), call for the record of the proceeding in which such order was passed, and on receipt of the record may make such inquiry or cause such inquiry to be made, and, subject to the provision of this Act, may pass such order thereon, not being an order prejudicial to the assessee, as he thinks fit :
Provided that the Commissioner shall not revise any order under this sub-section if -
(a) Where an appeal against the order lies to the Appellate Assistant Commissioner or to the Appellate Tribunal but has not been made, 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 an appeal against the order has been made to the Appellate Assistant Commissioner the appeal is pending before the Appellate Assistant Commissioner, or
(c) the order has been made the subject of an appeal to the Appellate Tribunal :
Provided further that an order by the Commissioner declining to interfere shall be deemed not to be an order prejudicial to the assessee.
Explanations - For the purposes of sub-sections (1) and (2), the Appellate Assistant Commissioner shall be deemed to be an authority subordinate to the commissioner.'
The above statutory provisions show that an assessee aggrieved by an appellate order of the Appellate Assistant Commissioner of Income-tax has two alternative courses open to him : (1) to prefer an appeal to the Income-tax Appellate Tribunal, and (2) to prefer a revision to the Commissioner of Income-tax. He cannot avail of both the remedies. He has to choose one and be content with it. After failing in the pursuit of one, he cannot made it round and seek to take recourse to the other. The statute has made it unmistakably clear that if the assessee has made the order of the Appellate Assistant Commissioner the subject of an appeal to the Income-tax Tribunal, the Commissioner of Income-tax shall not entertain a revision against the same order.
In the instant case, the petitioner admittedly preferred an appeal to the Tribunal against the order of the Appellate Assistant Commissioner. It cannot, therefore, be gainsaid that the petitioner deliberatively chose this particular remedy, thereby giving up by necessary implication the other remedy of revision. But the petitioners contention is that the appeal he preferred to the Tribunal was not an appeal in the contemplation of the Act or in the eye of law. This contention is rested solely on the circumstances that the Tribunal dismissed the appeal as out of time and did not go into the question of the correctness of the order passed by the Appellate Assistant Commissioner. As the Tribunal disposed of the matter on a point of limitation and on merits, its order cannot be regarded as one passed on an appeal. The test to apply to see whether the order passed by the Tribunal in the eye of law or not is to see whether the order passed by the tribunal was on merits or not. As the merits of the case cannot or will not be gone into a time-barred appeal, it should be held that there was no effective appeal and therefore no appeal at all in the eye of law. This line of reasoning is an attempt to argue backwards form the result of the appeal. If the matter was disposed by the Tribunal on merits, then an appeal must be held to have been preferred to the Tribunal; on the other hand, if the Tribunal disposed of it on a point of limitation, it must be held, according to the petitioners contention, that there was no appeal at all to the Tribunal in the contemplation of law. The legal character of a proceeding pursued by an aggrieved assessee would thus depend not on what he really intended it to be not even on what the relevant provision of law required it to be, but on the nature of the order which the quasi-judicial authority whom he approaches happens to pass eventually on it. This appears to me too strange a position to accept. There is no warrant for it in the provisions of the Act or under the general law.
Section 33(4) expressly empowers the Tribunal, after giving both parties to the appeal an opportunity of being heard, to pass such orders on the appeal as it thinks fit. This provision defines the powers for the Tribunal in quite wide terms. Section 33(6) gives finality of the orders passed by the Tribunal on an appeal, save as provided in section 66. The provisions of section 33 do not compel the Tribunal to dispose of an appeal only on merits. It is entitled to pass any order in the appeal as it thinks fit. The Tribunal is, therefore, competent to dismiss the appeal as time-barred. That would be final order within the meaning of section 33(6) of the Act. In order to ascertain whether or not an assessee had made the order of the Appellate Assistant Commissioner the subject of an appeal to the Tribunal, all that is necessary appears to be to see if the assessee had in fact preferred an appeal to the tribunal against the order of the Appellate Assistant Commissioner and it had been admitted. If these have taken place, he has made that order the subject of an appeal to the Tribunal. The answer to the question whether an appeal has been preferred or not cannot reasonably depend upon what its final result has been or how it has been disposed of at the hearing. A determination by the Tribunal as to whether the order appealed from his correct or tenable is not a sine qua non of there being an appeal. The result follows from a plain reading of the relevant provisions of the Act.
As a general proposition of law also, it does not appear to be correct to say that an appeal which has been admitted, although it be irregular or incompetent, is no appeal at all. The Judicial Committee of the Privy Council in Nagendranath Dey v. Sureshchandra Dey observed :
There is no definition of appeal in the Code of Civil Procedure, but their Lordships have no doubt that any application by a party to an appellate court, asking it to set aside or revise a decision of a subordinate court, is an appeal within the ordinary acceptation of the term, and it is no less an appeal because it is irregular or incompetent. The 1920 appeal was admitted and was heard in the due course, and a decree was made upon it.'
The Judicial Committee in the above case was constructing the word 'appeal' in the third column of article 182 of the Limitation Act. But the principle enunciated by them applies equally to the instant case. In Nagendranath Dey v. Sureshchandra Dey the main facts were that an appeal, which was irregular in form and insufficiently stamped, was admitted and heard by the High Court in the course. At the hearing of the appeal, an objection was taken that it was not maintainable, because it was irregular and insufficiently stamped. The appellant thereupon prayed for leave to amend the appeal, but that was refused. The appeal was thereafter heard and dismissed both on the ground of incompetency and on merits and the dismissal was embodied in a decree of the High Court. The observations extracted above were made by the Privy Council regarding the effect of the appeal on the question of limitation under article 182 of the Limitation Act. In the present case also the appeal was admitted by the Income-tax Appellate Tribunal and was heard in due course and orders were passed on it dismissing it as time-barred. The observations of the Privy Council already adverted to are, therefore, apposite to the case on hand. It follows that the contention raised on behalf of the petitioner that there was no appeal to the Tribunal in the eye of law cannot be accepted.
Reliance is, however, placed by the petitioners learned counsel on Sreenivasalu v. Commissioner of Income-tax That case turned on different facts. There the appeal to the Tribunal was not admitted, but was dismissed without being registered or numbered. It was ordinarily in view of this circumstances that the learned single judge of the Madras High Court held that there was no effective appeal. The case here is entirely different. Till an appeal is admitted, what the appellate authority has before it is only a memorandum of appeal and a rejection of it may well be regarded as not amounting to rejection of the appeal itself. The memorandum of appeal becomes vitalised into an appeal on its being received, registered and admitted as an appeal. This view finds support from a decision of the Full Bench of the Allahabad High Court in Hari Har Prasad Singh v. Beni Chand.
The learned counsel for the department has urged that the decision of the Allahabad Full Bench is not of assistance in constructing the provisions of the Income-tax Act and further that Sreenivasalu v. Commissioner of Income-tax cannot be regarded as correctly decided, in view of the recent decision of the Supreme Court in Mela Ram & Sons v. Commissioner of Income-tax I do not however think it necessary for the purpose of pursuant to decide on this broader question. But I may notice that the reasoning of the Supreme Court in Mela Ram & Sons v. Commissioner of Income-tax lends support to the contention advanced on behalf of the respondent. The Supreme Court was considering a case of an appeal preferred under section 30 of the Act, which was rejected by the Appellate Assistant Commissioner on the ground that it was filed out of time. The question was whether that was an order passed under section 31 of the Act. If it was, an appeal would lie to the Tribunal under section 33 of the Act. If it was not, there was no right of appeal. In this context, the Supreme Court pointed out that 'contentions relating to preliminarily issue (like limitation) are upon to consideration at the time of the hearing of the appeal, and that the jurisdiction of the Appellate Assistant Commissioner is not limited to the hearing of the appeal on the merits of the assessment only.' Their Lordships accordingly held that the orders of the Appellate Assistant Commissioner holding that there were no sufficient reasons for executing the delay and rejecting the appeals as time-barred would be orders passes under section 31 and would be open to appeal. They proceeded to say that it would make no difference in the position whether the order of dismissal is made before or after the appeal is admitted.
The Bombay High Court in Champalal Asharam v. Commissioner of Income-tax and the Allahabad High Court in Mohd. Naim Mohd Alam v. Commissioner of Income-tax have held that an order of the Appellate Assistant Commissioner dismissing an appeal as time-barred after it was admitted is one falling under section 31 and not under section 30(2) of the Act. the Madras High Court in Commissioner of Income-tax v. Shahzadi Begum and the Calcutta High Court in Gour Mohan Mullick v. Commissioner of Agricultural Income-tax have gone further and held that a dismissal of the appeal by the Appellate Assistant Commissioner on the ground of limitation at whatever stage was one which fell under section 31 of the Act. The Punjab High Court in Dewan Chand v. Commissioner of Income-tax no doubt held that any dismissal of an appeal by the Appellate Assistant Commissioner on the ground of limitation would not fall under section 31 of the Act, because the scheme of the Act contemplated a determination of the appeal on the merits of the assessee. This view was expressly overruled by the Supreme Court in Mela Ram & Sons v. Commissioner of Income-tax Thus, neither in principle nor an authority, is it possible top uphold the petitioners contention in the instant case that a dismissal by the Tribunal of an appeal, after its being admitted, on the ground of limitation or on any kindred ground must lead to the conclusion that no appeal in the eye of law was preferred by the assessee making the Appellate Assistant Commissioners order the subject of the appeal.
In view of the forgoing, this writ petition fails and dismissed with costs. Counsels fee Rs. 100.