Judgment :- 1. The petitioners, two in number, were assessed to income-tax in respect of the assessment year 1955-56 (Previous year: the twelve months ending on 31-3-1955) as an association of persons. The assessment was by the 1st respondent, the Additional Income-tax Officer, Alleppey. The assessment order is Ext. A dated 24-2-1956. 2. According to the petitioners there was a partition in 1926 and S.9 (3) of the Indian Income-tax Act, 1922, precludes their income from property being assessed as that of an association of persons. S.9 (3) i? in the following terms: "Where property is owned by two or more persons and their respective shares are definite and ascertainable, such persons shall not in respect of such property be assessed as an association, of persons, but the share of each such person in the income from the property as computed in accordance with this section shall be included in his total income". 3. There is no indication of any such contention having been raised in the proceedings before the 1st respondent. The petitioners filed an appeal before the 2nd respondent, the Appellate Assistant Commissioner of Income-tax, Trivandrum. The memorandum of appeal also did not embody any such contention. In Para.4 of the affidavit filed in support of the petition it is stated: "An additional ground of appeal was filed before the 2nd respondent to the effect that the assessment of our property income as the income of an association of persons is illegal and ought to be set aside". No application or memorandum appears to have been filed as stated in the passage extracted above. The departmental file produced before me also does not contain any petition or additional memorandum and counsel for the petitioners is unable to produce a copy of what is alleged to have been filed. Apparently all that was done was to raise the contention at the time the appeal came up for hearing. 4. Ext. B dated 10-9-1957 is the order of the Appellate Assistant Commissioner. He dealt with the new contention as follows: "At the time of appeal a fresh ground of appeal is urged regarding the assessment of property income in the hands of this association of persons. No reasonable cause has been given for failure to include this ground in the original appeal petition. I therefore decline to entertain this fresh ground of appeal at this stage". 5. No reasonable cause has been given for failure to include this ground in the original appeal petition. I therefore decline to entertain this fresh ground of appeal at this stage". 5. The petitioners then invoked the revisional jurisdiction of the Commissioner of Income-tax under S.33A (2) of the Indian Income-Tax Act, 1922. The order on the revision petition is Ext. C dated 26-2-1958: "This revision petition is against the order of the Appellate Asst. Commissioner of Income-tax, Trivandrum, dated 10-9-1957 declining to entertain a fresh ground of appeal regarding the assessment of property income in the hands of the assessee. The assessee's claim as stated in the revision petition is that the income of Rs. 7,303/- assessed under property for 55-56 in the status of an Association of persons should have actually been assessed in equal shares separately in the hands of each of the members of the Association. The petitioner did not raise this objection in the grounds of appeal filed before the Appellate Assistant Commissioner in the first instance. He, however, took up this contention as a fresh ground at the time of appeal; but as no reasonable cause was given for failure to include this ground in the original appeal petition, the Appellate Assistant Commissioner refused to entertain this fresh ground of appeal. 2. I have carefully gone through the relevant records of the case. Even in the revision petition the assessee has not stated the circumstances why he failed to include this ground in the original appeal petition. I therefore consider that the Appellate Assistant Commissioner was justified in not entertaining the fresh ground of appeal in question. 3. I do not accordingly see any reason to interfere". 6. The contention before me is that the refusal of the Appellate Assistant Commissioner to consider the fresh ground taken amounts to an arbitrary refusal to exercise the discretion vested in him under S.31 (2A) of the Indian Income-tax Act, 1922 and that Exts. B and C should hence be set aside and the Appellate Assistant Commissioner directed to hear and dispose of the matter on the merits. B and C should hence be set aside and the Appellate Assistant Commissioner directed to hear and dispose of the matter on the merits. S.31(2A) of the Indian Income-tax Act, 1922, reads as follows: "The Appellate Assistant Commissioner may, at the hearing of an appeal, allow an appellant to go into any ground of appeal not specified in the grounds of appeal, if the Appellate Assistant Commissioner is satisfied that the omission of that ground from the form of appeal was not wilful or unreasonable". Kanga deals with the sub-section as follows: "Sub-section (2A) empowers the Appellate Assistant Commissioner to allow an appellant, at the hearing of the appeal, to go into any ground of appeal not specified in the memorandum of appeal This power to allow a new or additional ground of appeal to be raised at the hearing is subject to the Appellate Assistant Commissioner is being satisfied, that the omission of that ground from the form of appeal was not wilful or unreasonable" (The Law and Practice of Income tax, Fourth Edition, Volume I, page 676) and Chagla, C. J: "Now it would be erroneous to contend that S.31 (2A) confers a power upon the Appellate Assistant Commissioner to permit an appellant to raise a ground not specified in the grounds of appeal. Sub-section (2A) must be rather looked upon as controlling the discretion of the Appellate Assistant Commissioner with regard to his right to refuse an appellant to raise a new ground, and the Legislature suggests that ordinarily the Appellate Assistant Commissioner should allow a new ground to be taken unless he is satisfied that the omission on the part of the appellant was wilful or unreasonable". (24 I. T. R.362) 7. In 5 I. T. R.417 - a reference under S.66 (3) of the Indian Income-tax Act, 1922 - the Chief Court of Oudh said: "It is a rule of general law that when a Court is allowed discretion in any matter, the discretion must be exercised in judicial manner, and not capriciously or arbitrarily. It is also well-settled that the proper or improper exercise of discretion is a question of law. If, therefore, the Assistant Commissioner had exercised his discretion in refusing to entertain the additional grounds in an improper manner, the discretion must be open to correction". 8. It is also well-settled that the proper or improper exercise of discretion is a question of law. If, therefore, the Assistant Commissioner had exercised his discretion in refusing to entertain the additional grounds in an improper manner, the discretion must be open to correction". 8. This decision was followed by the Nagpur High Court in 11 I.T. R.286, a reference under S.66 (1) of the Indian Income-tax Act, 1922. That court said: "We are aware of the fact that under the rules it is for the Tribunal to exercise discretion in granting leave to urge an additional ground; but this discretion has to be exercised judicially and not arbitrarily and if it is found that it has been exercised arbitrarily such exercise of discretion can be interfered with". 9. I propose to assume without deciding that an arbitrary exercise of the discretion vested in the Appellate Assistant Commissioner under S.31(2A) of the Indian Income-tax Act, 1922, can be interfered with even in proceedings like this under Art.226 of the Constitution. Even on that assumption, however, I am not satisfied that the second respondent has exercised his discretion arbitrarily or capriciously and it follows that this petition should fail and has to be dismissed. Judgment accordingly. 10. In view of what is stated in the last preceding paragraph it is unnecessary to consider the further contention of counsel for the department that the petitioner could have obtained a reference to this court under S.66 of the Indian Income Tax Act, 1922, if he had appealed to the Tribunal under S.33 of the Act instead of invoking as he did the revisional jurisdiction of the Commissioner under S.33 A (2) of the Act and that his conduct precludes relief under Art.226 of the Constitution. 11. I make no order as to costs. Dismissed.