JUDGMENT Hari Swarup, J.
1. This petition has been filed against the order of the Commissioner of Income-tax refusing to entertain the revision filed by the petitioner tinder Section 33A of the Indian Income-tax Act, 1922.
2. The petitioner was assessed to income-tax and a demand of interest amounting to Rs. 2,27,193 was also added under Section 18A(6) of the Act. Against this order regarding interest the petitioner filed a revision before the Commissioner. Petitioner also filed an appeal against the order of assessment to the Appellate Assistant Commissioner and therein also took a ground challenging the correctness of imposition of interest under Section 18A(6). The Assistant Commissioner did not originally decide this point but, ultimately, on remand from the Appellate Tribunal, decided the appeal regarding interest also, and by his order dated November 30, 1967, reduced the interest to Rs. 1,34,186. Against this order also the petitioner filed a revision under Section 33A, before the Commissioner. The Commissioner has dismissed this revision as not maintainable and has also observed that it was belated. He had already dismissed the earlier revision on the finding that it was not maintainable as the order of the Income-tax Officer had got merged in the order of the Appellate Assistant Commissioner dated November 30, 1967. In the order he also made the observation that a fresh revision within the time allowed by law could be filed against that order of the Appellate Assistant Commissioner.
3. It appears from the order of the Commissioner that he held the second revision as not maintainable because the assessee had filed an appeal before the Income-tax Appellate Tribunal against the order impugned in the revision. The Tribunal had itself dismissed the appeal as not maintainable. Learned counsel for the petitioner has contended that under Section 33A(2) of the Act a revision is barred only when an appeal is maintainable under the Act, and as the appeal in the present case was not maintainable there was no bar to the Commissioner's entertaining the revision. The contention of the learned counsel for the department, on the other hand, is that the only thing required for barring the revision is the making of an appeal by the assesses before the appellate authority. According to him, once an appeal was filed and entertained, then even if it is dismissed as not maintainable, the bar created by Sub-section (2) of Section 33A will come in the way. He has relied on the case of Mercantile Tobacco Corporation v. Commissioner of Income-tax, [1965] 57 ITR 483 (AP). In that case it was not contended that the appeal was not maintainable before the Tribunal. That case is thus of no assistance in the decision of the present controversy. Section 33A(2) provides for the filing of revision before the Commissioner against any order under the Act passed by an authority subordinate to the Commissioner. The Commissioner is, however, precluded from revising the order if:
(a) where an appeal against the order lies to the Appellate Assistant Commissioner or to the Appellate Tribunal but has not been made, 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 an appeal against the order has been made to the Appellate Assistant Commissioner, the appeal is pending before the Appellate Assistant Commissioner, or
(c) the order has been made the subject of an appeal to the Appellate Tribunal.
4. Clause (a) of Section 33A(2) speaks of an "appeal which lies" and thus refers to an appeal provided in the Act against the particular order. If no appeal is provided it cannot be said that such an appeal lies. Clauses (b) and (c) refer to appeals contemplated by Clause (a). Clause (c), which is relied upon by learned counsel for the department and which was taken as a bar by the Commissioner, applies only to cases where an appeal maintainable under the Act has been instituted. It deals with an appeal against an order which is appealable. If against a particular order no appeal lies, it cannot be made the subject of appeal to the Appellate Tribunal. The Tribunal itself has held that the order of the Assistant Commissioner was not appealable. It has not been shown to us that such an order is appealable. We are, therefore, of opinion that Clause (c) of the proviso to Sub-section (2) of Section 33A of the Act was no bar to the entertainability of the revision and the Commissioner failed to exercise the jurisdiction vested in him by law.
5. The Commissioner has also observed that the revision was belated. But he has not considered if the assessee was prevented from making an application in revision within the period allowed by law. It appears that because he was of opinion that the revision was not maintainable he did not go into the question. It is not for us here to decide whether circumstances justified condonation of delay or not. It will be for the Commissioner to decide if the revision can be entertained beyond one year of the date of the order.
6. In the result, the petition is allowed with costs, the order of the Commissioner dated 5th September, 1972, is set aside and he is directed to decide the revision in accordance with law.