The main legal point established in the judgment is that the Commissioner of Income Tax had no jurisdiction to entertain the revision petition of the assessee under section 264 of the Act, since that order sought to be revised was already the subject-matter of an appeal to the Tribunal.

Venkatachaliah, J.—This appeal raises a short but interesting question as to the scope of the revisional jurisdiction of the Commissioner of Income Tax to entertain a revision petition under section 264 of the Income Tax Act, 1961, at the instance of the assessee against that part of the appellate order of the Appellate Assistant Commissioner against which he is aggrieved in a case where the Revenue itself has preferred a second appeal to the Income Tax Appellate Tribunal from another part of the same first appellate order in respect of which the Revenue is dissatisfied.

2. The question arises this way : - The assessee is M/s. Hindustan Aeronautics Limited, respondent in this appeal. The assessment year is 1970-71. Against the order of the Income Tax Officer, the assessee preferred an appeal before the Appellate Assistant Commissioner on several grounds. The appeal was partly allowed and against that part of the appellate order which went against the assessee, the latter first preferred an appeal to the Tribunal, but later withdrew the appeal and involved the revisional jurisdiction of the Commissioner under section 264. In the meanwhile, the Department preferred an appeal to the Tribunal against that part of the Appellate Assistant Commissioner's order by which some relief was given to the assessee. The assessee, inter alia, relied upon a circular of the Central Board of Direct Taxes issued under section 119 of the Act, which according to him, enabled such a revision against the appellate order even where another part of the same order was subjected to an appeal before the Tribunal at the instance of the Department. The Commissioner did not accept this view and held that, in the circumstances, he had no jurisdiction. In the writ petition of the assessee, the learned single judge has held that the Commissioner had jurisdiction and has directed him to dispose of the revision petition on merits and in accordance with law. The Revenue has now come up in appeal.

3. Relying upon a decision of this court in Addl. CIT v. Vijayalakshmi Lorry Service (I.T.R.C. No. 37 of 1973 - see p. 327 infra) disposed of on September 17, 1975, it is contended that the Commissioner would cease to have jurisdiction, once the order of the Appellate Assistant Commissioner becomes the subject of an appeal, even if it be on one aspect alone, before the Income Tax Appellate Tribunal and in any event after the latter disposes of the appeal. The principle of merger of the original order in the appellate order is relied upon.

4. This appeal involves a question of some importance which requires to be settled by pronouncement by a Full Bench. The Bench decision of this court in Addl. CIT v. Vijayalakshmi Lorry Service (see p. 327 infra) on which the Revenue relies was, apparently, not cited before the learned single judge. That decision, in our opinion, might require reconsideration in the light of the pronouncements of the Supreme Court in Commissioner of Income Tax, Bombay Vs. Amritlal Bhogilal and Co., AIR 1958 SC 868 and State of Madras Vs. Madurai Mills Co., Ltd., AIR 1967 SC 681.

5. We, therefore, refer the following question of law for the opinion of the Full Bench :

"Can the Commissioner of Income Tax entertain the assessee's revision petition under section 264 of the Income Tax Act, 1961, preferred from a part of the appellate order of the Appellate Assistant Commissioner against which the assessee is aggrieved during the pendency or after the disposal, as the case may be, of the Department's second appeal before the Income Tax Appellate Tribunal preferred against another part of the same order where the subject matter of the appellate and revisional proceedings not the same but relates to distinct matters ?"

6. Place the records before the Hon'ble Chief Justice for appropriate directions as to posting.

Hakeem, J.

7. A Division Bench doubting the correctness of the decision of this court in the Addl. CIT v. Vijayalakshmi Lorry Service Bangalore (s