The main legal point established in the judgment is the importance of considering the specific provisions conferring power on the Commissioner and the scope of the statutory provisions conferring the appellate or revisional jurisdiction in reaching a decision.

Srinivasa Iyengar, J.—The petitioner is challenging an order made by the Commissioner of Income Tax dated November 29, 1975, rejecting the revision petition filed by it seeking relief in regard to the assessment made by the ITO for the assessment year 1971-72.

2. The assessment had been made by the ITO on August 30, 1972. Appeals had been preferred by the assessee before the AAC and the Income Tax Appellate Tribunal in respect of certain matters. The appeal before the Tribunal was decided on November 22, 1973. In the revision application filed before the Commissioner, the assessee sought to obtain relief to which, according to it, it was entitled by virtue of the provisions of s. 35C of the I.T. Act, 1961. Such a claim had not been put forth before the ITO nor any ground had been taken in this behalf in the appeals. The Commissioner rejected revision petition on the ground that the assessment order was made subject to an appeal to the Appellate Tribunal and, therefore, he could not interfere by virtue of the provisions under s. 264(4)(c) of the I.T. Act, 1961.

3. In this writ petition it is contended that as the relief sought before the Commissioner had not been the subject-matter or appeal before the Appellate Tribunal, he was not precluded from exercising his jurisdiction under s. 264(4)(c). Sri S. P. Bhat, learned counsel for the petitioner, contended that the assessment order in this behalf is not merged in the Appellate Tribunal and, therefore, rejection of the revision petition was untenable.

4. I am unable to agree with the contention put forth for the petitioner. The learned counsel referred to the decision is State of Madras v. Madurai Mills Co. Ltd. [1967] 19 STC 144. The Supreme Court in that case discussed the doctrine of merger. It was observed therein that (p. 149) :

"The doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by inferior tribunal and the other by a superior tribunal, passed in an appeal or revision, there is a fusion or merger of the two orders irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute...... The application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction."

5. In my opinion the question of the application of the doctrine of merger does not arise in the instant case. However, the observation therein that the scope of the statutory provision conferring the appellate or revisional jurisdiction should be borne in mind is relevant. Section 264(4) at the relevant time was as follows :

"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 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 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 Appellate Tribunal."

6. There was a similar provision under s. 33A(2) of the Indian I.T. Act, 1922. The scope of the latter provision was considered by the High Court of Madras in C. Gnanasundara Nayagar v. CIT [1961] 41 ITR 375.

7. I am in agreement with the reasoning contained in that judgment. The wording of s. 33A(2) of the earlier Act is identical with the provisions in the latter Act extracted above, and, therefore, the reasoning would clearly apply to the provisions in the I.T. Act, 1961.

8. In the aforesaid case, the assessee filed a revision application under s. 33A(2) to the Commissioner before filing an appeal to the Tribunal. The contention urged before