RAMANUJAM J.

The petitioner herein is carrying on business in paints, steel, perforated sheets, etc., in Madras and speculation and commission trade in Calcutta. In respect of assessment year 1970-71, he did not file any return on the ground that he did not have taxable income. But the Income-tax Officer completed the assessment ex parte under section 144 and estimated the total income at Rs. 40, 000 for the said assessment year. The petitioner as against the said order of assessment, filed an appeal before the Appellate Assistant Commissioner. The said appeal was rejected on the ground that it is time-barred by 28 days. Thereafter, the petitioner filed an appeal before the Appellate Tribunal as against the said appellate order. In preferring the appeal before the Tribunal there was also a delay. The Tribunal chose to condone the delay but ultimately upheld the order of the Appellate Assistant Commissioner rejecting the appeal as time-barred, after holding that the petitioner had not made out sufficient cause for the condonation of delay of 28 days. The Tribunal had not gone into the merits of the assessment in view of its order confirming the order of the Appellate Assistant Commissioner rejecting the appeal as out of time. Thereafter, the petitioner approached the Commissioner of Income-tax by filing a revision under section 264 of the Income-tax Act, 1961. That revision petition has been rejected by the Commissioner on the ground that the petitioner had gone on appeal before the Appellate Assistant Commissioner as well as before the Tribunal and, therefore, the petitioner's revision cannot be maintained. As against the said order of the Commissioner of Income-tax rejecting his revision petition, the petitioner has preferred the above writ petition.Before us learned counsel for the petitioner contends that the fact that he has gone in appeal before the Appellate Assistant Commissioner and thereafter before the Tribunal will not disable him from approaching the Commissioner by way of revision, as the appellate authorities have not dealt with the assessment on merits and they had rejected the appeals only on the ground of delay. Therefore, the only question that arises for consideration is whether the view of the Commissioner that the petitioner is not entitled to invoke the revisional jurisdiction under section 264 as he had already filed appeals before the appellate authorities could be sustained.

Section 264 of the Income-tax Act, 1961, reads as follows :

"264. (1) In the case of any order other than an order to which section 263 applies passed by an authority subordinate to him, the Commissioner may, either of his own motion or on an application by the assessee for revision, call for the record of any proceeding under this Act in which any such order has been passed and may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act may pass such order thereon, not being an order prejudicial to the assessee, as he thinks fit... ... ...

(4) 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." *

Sub-section (4) imposes certain restrictions on the power of the Commissioner to entertain the revision petitions. One of the restrictions is 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 could be made has not expired or in the case of an appeal to the Appellate