Ramaprasada Rao, J.
1. The petitioner owns two estates in Nilgiris District, namely, the Farm Tea Estate and Corsley Estate. For the assessment year 1964-65, the Agricultural Income-tax Officer was of the view that the notional income which the petitioner should be deemed to have earned by reason of the occupation of two bungalows in the estate by the partners was taxable income and included the same in the assessable income of the petitioner for that year. Similar assessments were made for the assessment years 1965-66, 1966-67 and 1967-68. For the year under consideration, namely, 1964-65, the petitioner, who was confronted with a demand for tax on the above income, as if it was agricultural income, did not agitate the matter or that portion of the order in appeal which he filed as against the original order of assessment for the year, passed by the assessing authority on July 15, 1966. It appears, however, that for the years 1965-66 to 1967-68, the petitioner not only filed appeals against the orders of assessment but also canvassed the propriety of the inclusion of similar income as above as assessable agricultural income. When the latter process was carried up to the stage of the Appellate Tribunal, the Tribunal was of the view that such income which is notional cannot be deemed to be rent derived from the agricultural operations which only was liable to tax. Encouraged by the decision of the Tribunal for the later years, and finding that he was within time to file a revision petition before the Commissioner of Agricultural Income-tax under Section 34 of the Act,the petitioner filed a revision against the original order of assessment before the Commissioner on April 15, 1969. As already stated he canvassed the legality and regularity of the original order of assessment, by filing-a regular appeal under Section 31 of the Madras Agricultural Income-tax Act, 1955. He did not, however, question the finality of that portion of the original order inland by which the notional income reckoned by the officer and relatable to the occupation of the buildings in the estate was brought to tax by him. We are not, however, concerned with the manner of disposal of the appeal so filed by the assessee but it is sufficient to state that the said appeal preferred by him under Section 31 of the Act was disposed of. Even so, a further appeal was made by him to the Appellate Tribunal under Section 32 of the Act. On the date when the revision petition was presented by the petitioner before the Commissioner of Income-tax, the Appellate Tribunal has disposed of the matter. The subject-matter before the Appellate Assistant Commissioner as well as the Appellate Tribunal were matters other than the subject whether the notional income found by the original authority in relation to the occupation of the partners of the petitioner-firm of two of the properties of the estate 'should or should not be brought to tax as agricultural income. When the subject was taken up by the Commissioner as the revisional authority under Section 34 of the Act, he was of the view that such income was assessable income. He also held that as the petitioner did not agitate the question whether such notional income could be brought to tax at all as agricultural-income, he cannot give a decision on it. In this view, he dismissed the revision petition. It is as against this the present writ petition has been filed.
2. The contention of Mr. Swaminathan, learned counsel for the petitioner, is that notwithstanding the fact that the petitioner has filed an appeal under Section 31 of the Act, and a further appeal to the Tribunal under Section 32 of the Act, there is no exhaustion of the relief which the petitioner could secure under Section 34 of the Act, the only condition precedent being that the order sought to be revised was not made beyond three years from the date of the presentation of the revision petition. It is no doubt true that three years have not lapsed between the date when the revision petition was presented under Section 34 of the Act and the date of the original order. The question, however, is whether, in the circumstances stated above, the petitioner can invoke the revisional jurisdiction of the Commissioner of Agricultural Income-tax and call for a decision.
3. I may, at once, state that the view expressed by the Commissioner that the notional income reckoned by the original authority was assessable to agricultural income-tax is not acceptable. Income is something which is not an adjunct of ownership or possession of property. It is something which ought to be earned by reason of such possession or ownership and byagricultural operations. If, as a matter of fact, the property is not used or utilised for the purpose of earning, then no income arises at all. It is only income which is assessable to tax under the taxing statutes unless there are express provisions to the contrary. In so far as the agricultural income-tax is concerned, it is only income from agricultural property that could be brought into the net of taxation. I am unable to uphold the opinion of the Commissioner that income is said to have been derived on the only ground that a property within the agricultural estate is in the occupation of its proprietors or partners. As no income is derived by such use of the property and as the incidence of tax is the earning of income, I am unable to sustain that portion of the order. But, the point is whether the petitioner is entitled to the relief asked for Under Section 34, a revision is provided by the statute to the Commissioner under certain stated circumstances. Section 34(2) provides that the Commissioner shall not revise any order under Sub-section (1) of Section 34, if : (a) where an appeal against an order lies to the Appellate Tribunal, the time within which such appeal may be made has not expired ; or (b) where an appeal against the order has been made to the Appellate Tribunal, the appeal is pending before it; or (c) the order has been made more than three years previously. In the instant case, Section 34(2)(b) is the section which has to be considered. The petitioner did file an appeal before the Appellate Tribunal and the appeal has been disposed of and it was no longer pending on the date of presentation of the revision petition. The argument, however, is that, as the petitioner neither in the appeal nor in the second appeal before the Appellate Tribunal canvassed the regularity or propriety of the original assessment in so far as it related to the inclusion of the income from properties used by the partners themselves, that portion of the subject-matter of the order appealed against is to be considered to be at large and its regularity can be still canvassed by a revision before the Commissioner. I am unable to agree. A revision or an appeal before a higher hierarchy are creatures of statute and unless there is express language which, provides for such a relief courts cannot vest such a power is an authority and enable him to deal with the subject-matter as if he is an appellate court or a revisional authority. It the instant case, the statute provides in a negative fashion and refers to the powers of the Commissioner in revision. He shall not revise an order under Sub-section (1) of of Section 34, if an appeal against the order has been made to the Appellate Tribunal during the pendency of the same. The statute is silent as to whether the power of revision of the Commissioner is still available to him even if the Appellate Tribunal has disposed of the appeal before it. In the absence of anything to indicate in the main section itself which enables the Commissioner to entertain and deal with a matter in revision after adisposal of the subject-matter by the Appellate Tribunal, one cannot find a provision like that so as to create a new revisional jurisdiction in the Commissioner.
4. Again, the petitioner when he filed the first appeal before the Appellate Assistant Commissioner and the second appeal before the Appellate Tribunal deliberately did not canvass the correctness of the inclusion of the above income as taxable income under the Act. He, therefore, elected to treat that part of the order appealed against by him as having become final not only in the eye of law but in so far as he is concerned and he having so elected cannot, taking advantage of supervening events which happened in relation to the assessment for the years 1965-66 onwards, try to approach the Commissioner of Income-tax by filing a revision petition under Section 34 as if he could reagitate the matter before him. His conduct tantamounts to approbating at one stage and reprobating at another stage in order to suit his convenience. Neither the Appellate Assistant Commissioner nor the Appellate Tribunal were ever called upon to decide the matter which was sought to be agitated, though within time, before the Commissioner in exercise of his revisional powers under Section 34. So long as the assessee is not aggrieved by an order or a part of it and he does not call upon the higher authority such as the appellate authority or the Tribunal to consider its regularity, he cannot at a late stage and particularly after the appellate authority or the Tribunal dealt with the other appeals before it, approach the Commissioner for relief under Section 34 of the Act. If this contention or situation as urged is accepted it would create a very anomalous situation. A litigant consciously avoids to attack a part of the order which he considers is affecting his rights. Thereafter, the appellate authority considers the subject-matter brought before it and finalises the situation. Then certain supervening events prompt the litigant to reopen, if possible, such final assessments in the eye of law; a trial is made by him through another channel to obtain relief. At that stage it is appropriate for that authority who is approached for relief to say: ' You were never aggrieved against that part of the order at any time before. You took it for granted that your rights were not affected. You were not aggrieved against the manner of the disposal of the matter. You are, therefore, precluded from seeking readjudication of the same within the compass of law. It cannot be reopened so lightly.' As a matter of fact, under Section 32(7), all orders passed by the Appellate Tribunal, on appeal under Section 32, are final. No doubt this is subject to Section 54 of the Act. It is not urged that the matter was brought up to this, court under Section 54 of the Act. Therefore, there is a final order of the Appellate Tribunal which is binding on the appellant. He cannot through the back-door set at naught such a finality reached by a process voluntarilyadopted by him. He cannot approach the Commissioner under Section 34and ask for a revision of a matter which has become final, which if allowed would lead to a situation which in certain circumstances may be conflicting with a settled situation and if both the irreconcilable situations are to rule then it would be highly embarrassing for the original authorities, for it would be difficult for them to lay a choice as to which of the orders they have to choose and implement. There will be the final order of the appellate authority under Section 32(2). There will also be a final order of the Commissioner of Agricultural Income-tax under Section 34, It may be that one may conflict with the other; if both were to rule and gain 'acceptance, it would lead to an anomalous situation which has to be avoided.
5. For all the reasons stated above, I am unable to agree that notwithstanding that the petitioner was within time in filing the revision before the Commissioner, he could, agitate the subject-matter on which he failed to raise an issue before the first appellate or the second appellate authorities under the Act. The rule nisi is discharged. The petition is dismissed. There will be no order as to costs.