R.M. Sahai, J.
1. By this petition filed under Article 226 of the Constitution of India, the principal relief sought is the quashing of the order dated 31st October, 1979, passed by the Commissioner dismissing a revision filed under Section 264 of I.T. Act, against the order dated 28th March, 1978, passed by the ITO disallowing registration to the petitioner under Section 185(5), as infructuous because the impugned order had been the subject of an appeal to the Commissioner (Appeals) even though it was dismissed on 12th September, 1979, as barred by time.
2. In order to assail the correctness of this order the petitioner has taken recourse to arguments both on merits and tecnicalities. It is urged that the revision having been fixed for hearing on 12th November, 1979, the Commissioner committed an error apparent on the face of the record in dismissing it on 31st October, 1979, on communication of written reply to the query made by the Commissioner as to whether the petitioner had filed an appeal. We, however, do not consider it necessary to examine this aspect as we are satisfied that the other argument advanced, that the Commissioner acted against law in refusing to entertain revision on an erroneous construction of Sub-clause (c) of Sub-section (4) of Section 264 of the Act, appears to be well founded.
3. Section 264 empowers the Commissioner to revise any order passed by an authority subordinate to him either on the application of the assessee or suo motu. Sub-section (4), however, takes away this jurisdiction, if theremedy to file appeal is available or it is pending. Further, in cases where an order has been made the subject of an appeal to the Commissioner (Appeals) or the Tribunal the jurisdiction of the Commissioner to examine the correctness or otherwise of such order is completely excluded. In this petition we are concerned with this last aspect, namely, whether the jurisdiction of the Commissioner was barred even if the appeal was dismissed as barred by time. In other words, could the dismissal of an appeal by the Commissioner (Appeals) result in the order of ITO having been made the subject of an appeal within the meaning of Clause (c) of Sub-section (4).
4. For deciding this controversy it is necessary to extract the sub-section which runs as under :
'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 Commissioner (Appeals) 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 Commissioner (Appeals) or 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 Commissioner (Appeals) or to the Appellate Tribunal.'
It is obvious that the answer to the question shall depend on the construction of the expression,' order has been made the subject of an appeal' used in Clause (c). It shall be noticed that the two Sub-clauses (b) and (c) of the sub-section use different language. In one the jurisdiction is barred if the appeal is pending whereas in the other if it has been made the subject of an appeal. But the bar imposed by Clause (b) is lifted once the appeal has been decided because the AAC, by yirtue of Expln. (2), is an authority subordinate to the Commissioner. This does not happen in a case where the appeal has been decided by the Commissioner (Appeals) or the Tribunal as they are authority of either co-ordinate or higher jurisdiction except, of course, in administrative matters. If it would not have been so, it would have resulted in conflicting orders passed by authorities of the same or even higher jurisdiction. It could not have been the intention. The Legislature, therefore, to avoid any conflict or anomaly, enacted this sub-clause.
5. We may now consider if the dismissal of an appeal on the ground of limitation results in the order having been made the subject of an appeal. Before answering this we may point out that where Legislature confers more than one remedy then the provisions have to be construed in a mannerin which the intention of the Legislature is carried into effect and not so as to frustrate it. Moreover, a provision excluding jurisdiction must be construed strictly. The apparent intention of Section 264 appears to he to enable an assessee to get the correctness of an order passed by the ITO examined either by the Commissioner (Appeals) under Section 246 or by the Commissioner under Section 264. That is, at least one higher authority may examine it on merits. If Clause (c) is construed in the manner as it has been done by the Commissioner it would result in negativing the remedy of an assessee which would be contrary to the intention of the Legislature.
6. It is urged on behalf of the Commissioner that once an appeal was filed, entertained and dismissed as barred by time the order passed by a subordinate authority stood affirmed and it would amount to an order which has been made the subject of an appeal. According to learned counsel the remedy of the petitioner to approach the Commissioner, therefore, under Section 264 was barred. At the first impression the argument did appear to be attractive. But, on the intention of Legislature and language of the section, we are not inclined to accept it. Appeal, in ordinary sense, means taking the order to a higher authority for examination of its correctness. Where an appeal is dismissed as barred by time or because it was deficiently stamped or it was not presented before the appropriate authority, it may result in finality of order passed by a subordinate authority and may even operate as res judicata but it cannot be considered to have been examined by a higher authority. An order passed in appeal and order having been the subject of an appeal appear to convey different senses. Dismissal of appeal as barred by time is an order passed in appeal against an order of the subordinate authority whereas a decision of a higher authority on merits results in the order having been made the subject of an appeal. The jurisdiction of the Commissioner could be barred under this provision only if the validity or the soundness of the order passed by a subordinate authority has been adjudicated upon by the Commissioner (Appeals). In our opinion, 'subject of an appeal' must be understood as adjudication or decision on merits. It may be that for approaching a higher authority even an order dismissing an appeal as barred by time may be construed as an order passed in appeal but that does not amount to the order of having been made the subject of an appeal.
7. While examining the analogous provision contained in Section 35A of Indian I.T. Act of 1922 in A.V. Sreenivasalu Naidu v. C1T : 16ITR341(Mad) it was observed (p. 345):
'It will be seen from the history of the legislation that Section 33A was introduced by Act XXIII of 1941. The revisional jurisdiction, which the Commissioner had before the Amendment Act of 1939, was takenaway by the repeal of the old section 33. Bat the Legislature obviously found that another alternative remedy less costly was necessary to give relief where the stakes involved were small, and introduced the revisional power again. An assessee can either prefer an appeal to the Appellate Tribunal or he may select the cheaper remedy and apply to the Commissioner to revise the order. If he so elects, if the time prescribed for preferring an appeal has not expired, he must waive his right to prefer an appeal. The object of the sections is clear. The assessee can agitate the validity of the order of the subordinate authority either before the Tribunal or the Commissioner. That was the intention of the legislature, and, in my view, the provisions of the aforesaid two sections clearly bring out the intention. The learned counsel for the Commissioner contended that the same consequences would follow even if an appeal was filed and dismissed as out of time. If this contention is accepted, it will defeat the purpose of the enactment and I cannot accept the same unless the words used in the section clearly support such contention...... The order is made the subjectof an appeal only when it is the subject matter of an effective appeal.'
This decision was followed in Krishna Flour Mills v. CIT : 55ITR259(KAR) .
8. Learned counsel for Commissioner relied on Mercantile Tobacco Corporation v. CIT : 57ITR483(AP) , where a Division Bench of the Andhra Pradesh High Court repelled the contention that dismissal of an appeal by the Tribunal on ground of limitation did not result in effective decision of an appeal. It was observed (p. 487):
'The test to apply to determine whether there was an appeal 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 in 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 from the result of the appeal. If the matter was disposed of 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 petitioner's 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, nor 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.'
For taking this view reliance was mainly placed on Champalal Ashara v. CIT : 23ITR464(Bom) and Mohd. Naim Mohd. Alam v. CIT : 19ITR58(All) , where it was held that the dismissal of an appeal as barred by time amounted to an order in appeal under Section 31 of the Act. Support was also drawn from Mela Ram and Sons v. CIT : 29ITR607(SC) . There can be no dispute specially after Mela Ram's decision that an order dismissing an appeal as barred by time amounts to decision of appeal. But as stated earlier we are not concerned whether the order passed by the Commissioner (Appeals) was an order in appeal but whether the order of the ITO could be held to have been subject of an appeal.
9. For the reasons stated above this petition succeeds and is allowed. The order dated October 31, 1979, passed by the Commissioner is quashed. He shall decide the revision afresh on merits in accordance with law. The petitioner shall be entitled to its costs.
10. Learned counsel for the Commissioner made an oral prayer for grant of certificate under Article 134A of the Constitution of India. As there is divergence of opinion between different High Courts we grant a certificate as the question of law raised is of substantial and general importance which needs to be decided by the Supreme Court.