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I.T.A. No. 2818/LB of 1985-86, decided on 7th May, 1987

---Ss. 138(2)(a)(b), 132 & 129--Appeal and revision--Revision petition does not fie before Commissioner of Income-tax before the expiry of the time limit for filing appeal before A.A.C. or when the appeal is pending before A.A.C.--Bar created under S. 138 is on the Commissioner of Income-tax that he cannot revise an order unless various requirements are complied with but there is: no such bar on the power of the A.A.C. to pass an order under S. 132 nor there is any bar provided by S. 129 that such an appeal could not be entertained--Appeal pending before A.A. C. will not become infructuous if an order has been passed in revision petition by the Commissioner of Income-tax.

Shahbaz Ahmed Butt for Appellant.

Nazir Ahmed Saleemi AC/DR for Respondent.

Date of hearing: 13th January, 1987.

This is an appeal filed by an individual- deriving income from property and relates to the assessment year 1982-83.

2. Brief facts of the case under which this appeal has arisen are that originally the assessee's declared income at Rs.23,595 was accepted u/s 59(1) of the Ordinance. Subsequently on receipt of an information from Survey and Collation it was discovered that the assessee had not disclosed his income from property. Consequently a notice a/s 65 of the Ordinance was issued and income of rent received from property known as 61-A Mcleod Road, Lahore was added to the tune of Rs.16,800 and net income at Rs.40,395 was finally assessed. An appeal was filed before the A.A.C. who dismissed it on two grounds. Firstly that the case was fixed for hearing on 20-11-1985 on which date an application for adjournment was received and the case was adjourned to 3-12-1985. However, on 3-12-1985 nobody appeared before the learned A.A.C. and ex parte order was passed by him. The learned A.A.C. did not go into the merits of the case and dismissed the appeal on technical ground. Another reason for dismissing the appeal was that the assessee had filed a revision petition before the learned C.I.T. Central Zone, Lahore against the order of assessment which was dismissed by the learned C.I.T. vide its order No. 2173 dated 21-10-1985 u/s 138 of the Ordinance. Consequently the learned A.A.C. observed:

"The appeal pending before this office is, therefore infructuous. It is dismissed in limine."

3. The learned counsel for the assessee stated at the Bar that he was out of country and made a request for adjourned on 3-12-1985. In regard to the second objection the learned counsel contended firstly that no revision petition was filed by the assessee.

Secondly that even if the revision petition had been filed by the assessee, the appeal did not become infructuous. It was stated by the learned counsel that what happened was that the assessee had given miscellaneous application to the learned CIT making complaint against the assessing officer who had proceeded ex parte against him and finalized the assessment u/s 63. It was submitted that this was not a regular revision petition within the meaning of section 138 as regular petition required certain formalities. It was submitted that inter alia, the following were the requirements to file the revision petition

(1) That a revision petition could not be filed without payment of tax u/s 54;

(2) A fee of Rs.25 had to be paid;

(3) It had to be stated and verified that the assessee had waved his right of appeal.

4. It was submitted that since it was a miscellaneous application, none of the above requirements was complied with by the assessee. However, the learned CIT under some wrong impression considered this miscellaneous application as revision petition and finally dismissed it as such.

5. The learned D.R. prayed for adjournment of the case on the ground that the C.I.T (A) might be called so as to find out as to whether the assessee had filed a revision petition or not. However, the request was not accepted in view of the proposed judgment.

6. Without going into the question as to whether the assessee had filed a revision petition or not and assuming, even if the revision petition had been filed by the assessee, the order of the learned A.A.C. is not legally correct. It was submitted by the learned counsel that the appeal was filed before the learned A.A.C. in November, 1985 and the alleged revised petition had been dismissed by the learned C.I.T. on 21-10-1985 which means that the alleged revision petition was dismissed before filing the appeal before the learned A.A. C. On perusal of subsection (2) of section 138 it is clear that a revision petition does not lie before the C.I.T. before the expiry of the time limit for filing appeal before the learned A.A.C. or when the appeal is pending before the A.A.C. Clauses (a) and (b) of subsection (2) of section 138, which are relevant, are reproduced below

"(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 the assessee has not waved his right of appeal; or

(b) "The order is pending on appeal before the Appellate Assistant Commissioner or has been made the subject of an appeal to the Appellate Tribunal; or

It is admitted position that the appeal was not pending before the learned A.A.C. when the application was made to the learned C.I.T. It is also not disputed that the time for filing of appeal before the learned A.A.C. had not expired nor the assessee had waved his right of appeal. As such the revision petition did not lie before the learned C.I.T. as it was not entertainable by him u/s 138. In any case the bar created a/s 138 is on the Commissioner that he cannot revise an order unless various requirements are not complied with but there is no such bar on the power of the learned A.A.C. to, pass an order u/s 132 of the Ordinance nor there is any bar provided by section 129 that such an appeal could not be entertained. The' learned A.A.C. has considered the appeal as infructuous for the sole'; reason that an order a/s 138 had been passed in revision petition by the learned C.I.T. There is no such provision in the Income-tax Ordinance under which appeal pending before the learned A.A.C. becomes infructuous if an order has been passed in revision petition by the learned C.I.T. As stated above the learned counsel for the assessee has already made statement at the bar that he was out of country on 3-12-1985 when the learned A.A.C. passed an ex parte order against the assessee. I have no reason to disbelieve the statement of the learned counsel for the assessee. In these circumstances, I set aside the order of the learned A.A.C. and remit the case back to him to fresh decision on merits.

M.B.A./402/T Case remanded.

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