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Dhankaur and ors. Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Special Appeal No. 160 of 1970
Judge
Reported in[1979]120ITR158(Raj); 1979()WLN213
ActsRajasthan Agricultural Income Tax Act, 1953 - Sections 48, 52 and 52(2); Constitution of India - Article 226
AppellantDhankaur and ors.
RespondentState of Rajasthan and ors.
Appellant Advocate H.C. Jain, Adv.
Respondent Advocate M.D. Purohit, Addl. Govt. Adv.
Excerpt:
.....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 provisions 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 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 assessee has an alternative remedy by way of appeal as well as revision and they are entitled to have recourse to either one of them. ' 7. the madras high court while interpreting section 33a has clearly laid down that the..........orders. the appellants did not prefer any appeal against the said assessment orders before the assistant commissioner as provided by section 48 of the act. they, however, filed revision applications under section 52 of the act whereby they challenged the correctness of the said assessment orders. these revision applications came to be disposed of by the additional commissioner, commercial taxes, who dismissed all these revision applications holding that they were barred by time.2. being aggrieved, the appellants moved this court under article 226 of the constitution of india praying for the quashing of the assessment orders passed by the agrl. ito and also for quashing the order of the additional commissioner, commercial taxes, rajasthan, dated january 1, 1966, dismissing the.....
Judgment:

M.L. Joshi, J.

1. The Agricultural ITO assessed the appellants under the provisions of the Rajasthan Agricultural Income-tax Act, 1953 (hereinafter to be referred to as 'the Act'), for the assessment years 1954-55 to 1959-60 by his separate six assessment orders. The appellants did not prefer any appeal against the said assessment orders before the Assistant Commissioner as provided by Section 48 of the Act. They, however, filed revision applications under Section 52 of the Act whereby they challenged the correctness of the said assessment orders. These revision applications came to be disposed of by the Additional Commissioner, Commercial Taxes, who dismissed all these revision applications holding that they were barred by time.

2. Being aggrieved, the appellants moved this court under Article 226 of the Constitution of India praying for the quashing of the assessment orders passed by the Agrl. ITO and also for quashing the order of the Additional Commissioner, Commercial Taxes, Rajasthan, dated January 1, 1966, dismissing the revision applications by a single order. The appellants further prayed that direction be issued to the Additional Commissioner for disposing of the revision applications in accordance with law. The writ petitions came before the learned single judge, Shri V. P. Tyagi as he then was. Before the learned single judge two preliminary objections were raised on behalf of the respondents, namely, (1) that the appellants could not prefer revision applications before the Commissioner, Commercial Taxes, under Section 52(2) of the Act as they did not avail of the statutory remedy of appeal provided in the Act against the impugned assessment orders before the Assistant Commissioner; and (ii) that a single petition under Article 226 of the Constitution for quashing of separate assessment orders for six years was not maintainable.

3. The learned single judge dismissed the writ petition by upholding the first preliminary objection. According to the learned single judge, the appellants could not invoke the revisional jurisdiction of the Commissioner as they had not availed of the statutory remedy of appeal in view of Clause (a) of the prov. to Sub-section (2) of Section 52 of the Act.

4. The short question which calls for determination is whether the revision applications could lie directly before the Additional Commissioner against the assessment orders without availing of the statutory remedy of appeal provided in the Act. In order to answer this question it will be appropriate to reproduce Sub-section (2) of Section 52 of the Act, which reads as under:

'52. Power of revision by Commissioner.--...

(2) The Commissioner may, on application by an assessee for revision of an order under this Act passed by any Agricultural Income-tax Officer 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 provisions 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 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 Assistant Commissioner, the appeal is pending before the 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....'

5. Under Sub-section (2) of Section 52 of the Act, the Commissioner may on applica-cation by the assessee for revision of an assessment order under the Act passed by the Agrl. ITO call for the record of the proceedings in which such order was passed and after perusing the record and making such inquiry as he may deem fit pass such order which order shall not be prejudicial to the assessee. Under clause (a) of the prov. to Sub-section (2) of Section 52 of the Act limitation has been put on the power of the Commissioner whereunder he has been enjoined not to revise any order under Sub-section (2) of Section 52 of the Act where an appeal against the order lies to the Assistant Commissioner or to the Appellate Tribunal but has not been made and the time within which an appeal is to be made has not expired. Section 48 provides for an appeal against the order of the Assistant Commissioner to the Appellate Tribunal within 60 days of the date on which the order of the Assistant Commissioner is communicated to the party. Section 48(2) gives a discretion to the Tribunal to admit an appeal after the expiry of the sixty days. Section 52(2) provides a revision to the Commissioner againt an order of the authority subordinate to him at the instance of the aggrieved party. The proviso to Sub-section (2) of Section 52, in so far as it is relevant, deals with three contingencies when such power of revision cannot be exercised by the Commissioner :

(1) When the time prescribed for preferring an appeal to the Tribunal had not expired.

(2) When the assessee has not waived his right to prefer an appeal within the time so prescribed; and

(3) Where the order has been made the subject of an appeal to the Appellate Tribunal.

6. From the reading of ss, 48 and 52 of the Act it appears that the remedy by way of revision is an alternative to the right of appeal provided in Section 48. To us it appears that the assessee can either prefer an appeal to the Appellate Tribunal or he may select the remedy of revision. Although the scope for agitating points in appeal is far larger in comparison to revision, yet in appeal the assessee may run the risk of tax being enhanced; whereas in revision no prejudicial order can be passed against the assessee even if relief may not be given to him. The assessee if he so elects may waive his right to prefer appeal. According to us the correct construction of Section 52 is that the assessee can challenge the validity of the order of the subordinate authority before either the Tribunal or the Commissioner. There is no force in the contention that the assessee-appellants could have filed the appeal to the Appellate Tribunal in time and having not done so they were not entitled to file revision application. It is true that the appellants could have preferred an appeal to the Appellate Tribunal against the orders of the Assistant Commissioner under Section 48 of the Act but from the combined reading of Sections 48 and 52 we are of the opinion that they were not bound to do so. As stated earlier the remedy of revision is of an alter-native character. The assessee has an alternative remedy by way of appeal as well as revision and they are entitled to have recourse to either one of them. With great respect to the learned single judge we may say that he was not right when he said that the revision was not maintainable as the statutory right to appeal was not availed of. We are fortified in our view by a decision of the Madras High Court rendered in Sreenivasalu v. CIT : [1948]16ITR341(Mad) . This case, of course, was under the Indian I.T. Act. It related to the construction to be put on Section 33A of the Indian I.T. Act, 1922. Section 33 A of the Indian I.T. Act, 1922, is in pari materia with Section 52 of the Act. It may be reproduced as under:

'33A. Power of revision by Commissioner.--(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 may make such inquiry or cause such inquiry to be made and, subject to the provisions 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, 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,.....call for therecord 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 provisions 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.....

(3) Every application by an assessee under sub-section (2) shall be accompanied by a fee of twenty-five rupees.'

7. The Madras High Court while interpreting Section 33A has clearly laid down that the remedies of appeal and revision are alternative and the assessee could avail any one of them. It has been further laid down that merely because the assessee did not file an appeal against the assessment order that by itself will not deprive him of the right to file a revision directly before the Commissioner. We agree with the view taken by the Madras High Court in Sreenivasala's case : [1948]16ITR341(Mad) . The learned single judge, in our opinion, was in error when he held that the revision cannot be filed directly to the Additional Commissioner without taking recourse to the statutory remedy of appeal provided under Section 48 of the Act. We, therefore, allow this special appeal and set aside the order of the learned single judge and direct that the Additional Commissioner shall decide the revision application according to law.


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