1987 PLP (Trib (PTD)

3. The learned counsel for the assessee stated at the Bar that he was out of country and made a request for adjourned on 3-12-1985. In regard to the second objection the learned counsel contended firstly that no revision petition was filed by the assessee. Secondly that even if the revision petition had been filed by the assessee, the appeal did not become infructuous. It was stated by the learned counsel that what happened was that the assessee had given miscellaneous application to the learned CIT making complaint against the assessing officer who had proceeded ex parte against him and finalized the assessment u/s

63. It was submitted that this was not a regular revision petition within the meaning of section 138 as regular petition required certain formalities. It was submitted that inter alia, the following were the requirements to file the revision petition (1) That a revision petition could not be filed without payment of tax u/s 54; (2) A fee of Rs.25 had to be paid; (3) It had to be stated and verified that the assessee had waved his right of appeal.

4. It was submitted that since it was a miscellaneous application, none of the above requirements was complied with by the assessee. However, the learned CIT under some wrong impression considered this miscellaneous application as revision petition and finally dismissed it as such.

5. The learned D.R. prayed for adjournment of the case on the ground that the C.I.T (A) might be called so as to find out as to whether the assessee had filed a revision petition or not. However, the request was not accepted in view of the proposed judgment.

6. Without going into the question as to whether the assessee had filed a revision petition or not and assuming, even if the revision petition had been filed by the assessee, the order of the learned A.A.C. is not legally correct. It was submitted by the learned counsel that the appeal was filed before the learned A.A.C. in November, 1985 and the alleged revised petition had been dismissed by the learned C.I.T. on 21-10-1985 which means that the alleged revision petition was dismissed before filing the appeal before the learned A.A. C. On perusal of subsection (2) of section 138 it is clear that a revision petition does not lie before the C.I.T. before the expiry of the time limit for filing appeal before the learned A.A.C. or when the appeal is pending before the A.A.C. Clauses (a) and (b) of subsection (2) of section 138, which are relevant, are reproduced below "(a) Where an appeal against the order lies to the Appellate Assistant Commissioner or to the Appellate Tribunal, the time within which such appeal may be made has not expired, or the assessee has not waved his right of appeal; or (b) "The order is pending on appeal before the Appellate Assistant Commissioner or has been made the subject of an appeal to the Appellate Tribunal; or It is admitted position that the appeal was not pending before the learned A.A.C. when the application was made to the learned C.I.T. It is also not disputed that the time for filing of appeal before the learned A.A.C. had not expired nor the assessee had waved his right of appeal. As such the revision petition did not lie before the learned C.I.T. as it was not entertainable by him u/s

138. In any case the bar created a/s 138 is on the Commissioner that he cannot revise an order unless various requirements are not complied with but there is no such bar on the power of the learned A.A.C. to, pass an order u/s 132 of the Ordinance nor there is any bar provided by section 129 that such an appeal could not be entertained. The' learned A.A.C. has considered the appeal as infructuous for the sole'; reason that an order a/s 138 had been passed in revision petition by the learned C.I.T. There is no such provision in the Income-tax Ordinance under which appeal pending before the learned A.A.C. becomes infructuous if an order has been passed in revision petition by the learned C.I.T. As stated above the learned counsel for the assessee has already made statement at the bar that he was out of country on 3-12-1985 when the learned A.A.C. passed an ex parte order against the assessee. I have no reason to disbelieve the statement of the learned counsel for the assessee. In these circumstances, I set aside the order of the learned A.A.C. and remit the case back to him to fresh decision on merits. M.B.A./402/T Case remanded.