JUDGMENT Srinivasa Iyengar, J.—The petitioner is challenging an order made by the Commissioner of Income Tax dated November 29, 1975, rejecting the revision petition filed by it seeking relief in regard to the assessment made by the ITO for the assessment year 1971-72. 2. The assessment had been made by the ITO on August 30, 1972. Appeals had been preferred by the assessee before the AAC and the Income Tax Appellate Tribunal in respect of certain matters. The appeal before the Tribunal was decided on November 22, 1973. In the revision application filed before the Commissioner, the assessee sought to obtain relief to which, according to it, it was entitled by virtue of the provisions of s. 35C of the I.T. Act, 1961. Such a claim had not been put forth before the ITO nor any ground had been taken in this behalf in the appeals. The Commissioner rejected revision petition on the ground that the assessment order was made subject to an appeal to the Appellate Tribunal and, therefore, he could not interfere by virtue of the provisions under s. 264(4)(c) of the I.T. Act, 1961. 3. In this writ petition it is contended that as the relief sought before the Commissioner had not been the subject-matter or appeal before the Appellate Tribunal, he was not precluded from exercising his jurisdiction under s. 264(4)(c). Sri S. P. Bhat, learned counsel for the petitioner, contended that the assessment order in this behalf is not merged in the Appellate Tribunal and, therefore, rejection of the revision petition was untenable. 4. I am unable to agree with the contention put forth for the petitioner. The learned counsel referred to the decision is State of Madras v. Madurai Mills Co. Ltd. [1967] 19 STC 144. The Supreme Court in that case discussed the doctrine of merger. It was observed therein that (p. 149) : "The doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by inferior tribunal and the other by a superior tribunal, passed in an appeal or revision, there is a fusion or merger of the two orders irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute...... The application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction." 5. In my opinion the question of the application of the doctrine of merger does not arise in the instant case. However, the observation therein that the scope of the statutory provision conferring the appellate or revisional jurisdiction should be borne in mind is relevant. Section 264(4) at the relevant time was as follows : "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." 6. There was a similar provision under s. 33A(2) of the Indian I.T. Act, 1922. The scope of the latter provision was considered by the High Court of Madras in C. Gnanasundara Nayagar v. CIT [1961] 41 ITR 375. 7. I am in agreement with the reasoning contained in that judgment. The wording of s. 33A(2) of the earlier Act is identical with the provisions in the latter Act extracted above, and, therefore, the reasoning would clearly apply to the provisions in the I.T. Act, 1961. 8. In the aforesaid case, the assessee filed a revision application under s. 33A(2) to the Commissioner before filing an appeal to the Tribunal. The contention urged before the High Court was that the Commissioner could not exercise the jurisdiction, in the circumstances of the case, to grant the relief claimed by the party and hence remand of the proceedings was not called for. That was upheld by the High Court. In the course of the judgment, it was stated as follows (p. 379) : "There is no dispute about the factual position that the order the Commissioner was asked to revise was the order of assessment, the order of the Income Tax Officer in each of the two years. That was upheld by the High Court. In the course of the judgment, it was stated as follows (p. 379) : "There is no dispute about the factual position that the order the Commissioner was asked to revise was the order of assessment, the order of the Income Tax Officer in each of the two years. Was that order assessment the subject of an appeal to the Tribunal within the meaning of clause (c) of the proviso is the question. It was. That the relief claimed in the application preferred under section 33A(2) was not the subject-matter of the appeal to the Tribunal does not alter the position that the order of assessment was the subject of the appeal. To put it differently, the fact that the jurisdiction of the Tribunal was limited to the disposal of the claims preferred in the appeal did not alter the position that the order of assessment was the subject of the appeal. Even if only a portion of an order of assessment is the subject of appeal to the Tribunal, still the position is that the subject of the appeal appeal to the Tribunal is the order of assessment. To accept the plea of the learned counsel for the petitioner, that the appeals the petitioner preferred to the Tribunal did not prevent the Commissioner from exercising the revisional jurisdiction vested in him by section 33A(2), we have to construe the word "order" in clause (c) of the proviso, as the 'relief claimed' and to read clause (c) as if it ran : 'Provided that the Commissioner shall not revise any order under this sub-section if the relief claimed has been made the subject of an appeal to the Appellate Tribunal.' Such an interpretation is not permissible." 9. Again, after discussing the several clauses in the section, it was observed (p. 381) : "If no appeal has been referred to the Tribunal but there is still time to prefer the appeal, clause (a) comes into play and bars the revisional jurisdiction. If an appeal is preferred, clause (c) comes into play and bars the jurisdiction to revise the order appealed against, the whole or any portion of that order. The finality of an assessment which flows from the order of a Tribunal cannot obviously, be disturbed by the Commissioner in the exercise of his revisional jurisdiction under section 33A(2). If an appeal is preferred, clause (c) comes into play and bars the jurisdiction to revise the order appealed against, the whole or any portion of that order. The finality of an assessment which flows from the order of a Tribunal cannot obviously, be disturbed by the Commissioner in the exercise of his revisional jurisdiction under section 33A(2). Consistent with the scheme of the proviso section 33A(2), that revision and appeal are not concurrent remedies open to an assessee, clause (a) and (c) bar the revisional jurisdiction, the first when an appeal is open to the Tribunal, and the second, when an appeal has been preferred to the Tribunal. Running through the entire scheme is the basic concept of the unity of an order of assessment for purposes of appeal or revision..... Not only the assumption of the revisional jurisdiction but also its exercise are conditioned by clause (c) of the proviso to section 33A(2). An order of assessment cannot be revised by the Commissioner, if an appeal has been preferred against that order to the Tribunal. That remains unaffected by the scope of the appeal preferred to the Tribunal, whether it is restricted by the assessee of his own choice or whether it is restricted by the Tribunal. The relief permissible or granted in the appeal to the Tribunal can have no bearing in determining the scope of the statutory expression 'order' in clause (c) so long as it is the order of assessment that has been appealed against." 10. It is seen from the provision of the Act that the Commissioner is given certain powers to grant relief under ss. 263 and 264. There are also provisions conferring specific powers on the Commissioner in regard to penalty, etc. The power of the Commissioner should be judged from the specific provisions conferring that power. In that view and having regard to the reasoning in the decision cited above, the Commissioner was right in rejecting the application of the petitioner. 11. The Kerala High Court in the case H. A. Mohamed Haneef v. ITO [1973] Tax LR 645 has considered a similar question and it was observed therein (p. 646) : "If what sub-section (4) enacts is a bar against a remedy the argument is good. But, in my view, it is not so. 11. The Kerala High Court in the case H. A. Mohamed Haneef v. ITO [1973] Tax LR 645 has considered a similar question and it was observed therein (p. 646) : "If what sub-section (4) enacts is a bar against a remedy the argument is good. But, in my view, it is not so. It contains a prohibition against the exercise of the revisional jurisdiction of the Commissioner in the case mentioned therein." 12. I am in agreement with this view. I am unable to find any illegality in the order made by the Commissioner. Accordingly, this writ petition is dismissed. 13. No costs.