C.N. Ramachandran Nair, J.

The petitioner is challenging revisional orders of the Commissioner of Income Tax issued for the assessment years 1995-96 and 1996-97 sustaining disallowance of petitioner's claim for deduction of salary paid to driver and depreciation in respect of car made by the Assessing Officer in the course of proceedings issued under S.143(1)(a) of the Income Tax Act (hereinafter called "the Act"). The petitioner-assessee returned income under the head "Income from salary, income from house property, capital gains and also income from other sources" for both the assessment years. It is seen in the statements accompanying the returns that the assessee claimed deduction of salary paid to driver amounting to Rs.32,000/- and Rs.20,000/- towards depreciation for the car for both the years in the computation of income under the head "Income from the other sources". The Assessing Officer accepted the return in all other respects except in regard to claim of deduction towards drivers salary and depreciation in respect of car made by the petitioner under the head "Income from the other sources". These amounts are added back, income determined and tax demanded through proceedings issued under S.143(1)(a) of the Act. The assessee challenged these orders in revision petition filed before the Commissioner under S.264 of the Act on the ground that the deductions claimed are not items prima facie inadmissible for addition under clause (iii) of first proviso to S.143(1)(a) of the Act. However, the Commissioner vide Ext.P7 rejected the revision petitions on the ground that claim of salary paid to driver is inadmissible by virtue of law settled by decision of the Supreme Court in Vijayalaxmi Sugar Mills Ltd. v. Commissioner of Income Tax (191 ITR 641) and so far as allowance of depreciation is considered, the claim is prima facie inadmissible because petitioner returned no income from hire charges against which only allowance of depreciation is provided while computing income under the head income from other sources under S.57(ii) of the Act. It is against this common order that petitioner has filed this Writ Petition.

2. I heard counsel for the petitioner and Senior counsel Sri. P.K.R. Menon, appearing for the respondents. Counsel for the petitioner contended that the claim of deduction of depreciation and driver's salary are not items which could be disallowed as prima facie inadmissible while issuing proceedings under S.143(1)(a) of the Act. According to him, the claim is obviously made under S.57(iii) of the Act which is a residuary clause providing for deductions in the computation of income from other sources and the nature of the claim and the section under which it is claimed are such that, the issue cannot be settled without an objective consideration or in other words, the issue calls for an adjudication as to whether petitioner will ultimately succeed or not. So much so, his contention is that the issues were such that disallowance could be done only in a proceedings under S.143(3) and after issuing notice and giving opportunity to the petitioner under S.143(2) of the Act. Senior counsel for respondents on the other hand contended that the nature of the claim is from petitioner's own statement and so long as the claim is not allowable either based on law declared by the Supreme Court or based on express provision of the statute, there is no need for any adjudication and the officer could disallow the claim as prima facie inadmissible under clause (iii) of first proviso to S.143(1)(a) of the Act. According to him, by virtue of decision of the Supreme Court relied on by the Commissioner of Income Tax, salary paid to driver is a claim inadmissible under the head of income under which petitioner's income falls. Similarly, depreciation is allowable under S.57(ii) of the Act which can be granted only against income from hire charges. So long as petitioner has not returned any income from hire charges, petitioner