C GNANASUNDARA NAYAGAR Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) WHEN the petitioner was assessed to income-tax for the assessment years 1951-52 and 1952-53, the rental income from two of his houses, 9/2 and 9/3 Mosque Street, Kodambakkam, was included in his return by the assessee himself, and he was taxed on that income also, Rs. 3, 500, in the first and Rs. 3, 930 in the second year. These assessments were completed by the Income-tax Officer on November 30, 1953. Neither then nor at the stage of the appeals the petitioner preferred successively to the Assistant Commissioner and to the Tribunal against the orders of assessment, did the petitioner (assessee) claim that he was entitled to deduct the rent from these two houses under section 4(3)(xii) of the Income Tax Act, 1961. The Assistant Commissioner disposed of the appeals on November 20, 1954. The further appeals preferred by the assessee on January 26, 1955, were disposed of by the Tribunal on May 9, 1955. It is not necessary to examine the scope of the reliefs asked for by the petitioner in those appeals. It is enough to note that the petitioner did not prefer any claim based on section 4(3)(xii) of the Act, and such a claim was not the subject-matter of any of these appeals On December 10, 1954, that is, after the disposal of the appeals by the Assistant Commissioner and before the petitioner preferred appeals to the Tribunal against the orders of the Assistant Commissioner, the petitioner applied to the Income-tax Officer and to the Commissioner of Income-tax for relief under section 4(3)(xii). The claim of the petitioner was that the construction of the two houses in question was commenced in April, 1949, and completed by March 31, 1950, which was within the statutory limits prescribed by section 4(3)(xii).

(2.) THE Income-tax Officer could not revise his orders of assessment, and we need not concern ourselves further with the application preferred to him by the petitioner. In the application preferred simultaneously to the Commissioner, the petitioner invoked the jurisdiction vested in the Commissioner by section 33A(2). THE Commissioner called for reports from his subordinates, and eventually on September 28, 1955, he dismissed the petitioner's applications. THE relevant portion of his order ran

(3.) IT is true that that was not a ground on which the Commissioner rejected the application preferred to him by the petitioner. IT is equally true that the only ground on which the Commissioner rejected the applications does not bear any scrutiny. None the less, we have to uphold the contention of the learned counsel for the Department, that the petitioner misconceived his remedy when he invoked the revisional jurisdiction of the Commissioner under section 33A(2). Section 33A(2) ran