JUDGMENT K.S. Paripoornan, J. 1. The petitioner is a dissolved firm. It was doing business as an abkari contractor in Hosdurg. For the assessment year 1977-78 the 2nd respondent, Income Tax Officer, A-Ward, Cannanore, assessed the petitioner firm to Income Tax under S.144 of the Act. This is evidenced by Ext. P-1, dated 25th March 1980. The petitioner filed a revision, Ext. P-2 from the aforesaid order. By Ext. P-3 order, dated 6th March 1981 the 1st respondent allowed the revision in part and reduced the total income by Rs. 50,000. This O.P. is filed praying to quash Exts. P-1 and P-3 orders passed by the respondents. 2. On behalf of the petitioner, assessee, learned counsel Mr. T. L. Viswanatha Iyer, contended that the Income Tax Officer erred in passing Ext. P-1 assessment order without giving sufficient opportunity to the petitioner. It is the petitioner's case that as a result of the search of the business premises on 11th November 1976 the account books and other documents were taken away by the Department and so the petitioner was not able to file the profit and loss account and balance sheet along with the return of income. That also disabled the petitioner from attending the hearing when the matter was posted for finalisation of the assessment. Without reckoning this fact, the 2nd respondent passed the order of assessment, Ext. P-1, to the best of his judgment under S.144 of the Act. In revision, the commissioner erred in law in not, adjudicating, the question regarding the validity of the best judgment assessment but gave only quantum relief. The procedure adopted by the Commissioner is also illegal. In this view of the matter, Exts. P-1 and P-3 deserve to be quashed. 3. On the other hand counsel for the Revenue Mr. N. R. K. Nair, contended that Ext. P-1 order of assessment was passed under S.144 of the Act and the assessee petitioner should have filed a petition to cancel the assessment under S.146 of the Act and it is not open to the petitioner assessee to urge the question regarding the validity of the assessment in the revision filed by him from Ext. P-1 order passed under S.144 of the Act and Ext. P-1 and Ext. P-3 orders are valid and tenable in law. 4. P-1 order passed under S.144 of the Act and Ext. P-1 and Ext. P-3 orders are valid and tenable in law. 4. Since the entire controversy centres round the interpretation placed on the relevant provisions of Income Tax Act, it will be useful to extract the said provisions. "144. If any person- (a) fails to make the return required by any notice given under sub-s.(2) of S.139 and has not made a return or a revised return under sub-s.(4) or sub-s.(5) of that Section, or (b) fails to comply with all the terms of a notice issued under sub-s.(1) of S.142 or fails to comply with a direction issued under sub-s.(2A) of that Section, or (c) having made a return, fails to comply with all the terms of a notice issued under sub-s.(2) of S.143, the Income Tax Officer, after taking into account all relevant material which the Income Tax Officer has gathered, shall make the assessment of the total income or loss to the best of his judgment and determine the sum payable by the assessee or refundable to the assessee on the basis of such assessment. 146. (1) Where an assessee assessed under S.144 makes an application to the Income Tax Officer, within one month from the date of service of a notice of demand issued in consequence of the assessment, for the cancellation of the assessment on the ground (i) that he was prevented by sufficient cause from making the return required under sub-s.(2) of S.139, or (ii) that he did not receive the notice issued under sub-2.(1) of S.142 or sub-s.(2) of S.143, or (iii) that he had not a reasonable opportunity to comply or was prevented by sufficient cause from complying, with the terms of any notice referred to in clause (ii), the Income Tax Officer shall, if satisfied about the existence of such ground, cancel the assessment and proceed to make a fresh assessment in accordance with the provisions of S.143 or S.144. (2) Every application made under sub-s.(1) shall be disposed of within ninety days from the date of receipt thereof by the Income Tax Officer: Provided that in computing the period of ninety days aforesaid, any delay in disposing of the application which is attributable to the assessee shall be excluded. "264. (2) Every application made under sub-s.(1) shall be disposed of within ninety days from the date of receipt thereof by the Income Tax Officer: Provided that in computing the period of ninety days aforesaid, any delay in disposing of the application which is attributable to the assessee shall be excluded. "264. (1) In the case of any order other than an order to which S.263 applies passed by an authority subordinate to him, the Commissioner may, either of his own motion or on an application by the assessee for revision, call for the record of any proceeding under this Act in which any such order has been passed and may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act, may pass such order thereon, not being an order prejudicial to the assessee, as he thinks fit. (2) The Commissioner shall not of his own motion revise any order under this Section if the order has been made more than one year previously. (3) In the case of an application for revision under this Section by the assessee, the application must be made within one year from the date on which the order in question was communicated to him or the date on which he otherwise came to know of it, whichever is earlier: Provided that the Commissioner may, if he is satisfied that the assessee was prevented by sufficient cause from making the application within that period, admit an application made after the expiry of that period. (4) The Commissioner shall not revise any order under this S. in the following cases- (a) where an appeal against the order lies to the Appellate Assistant Commissioner or to the Commissioner (Appeals) 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 Commissioner (Appeals) or 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 Commissioner (Appeals) or to the Appellate Tribunal. (5) Every application by an assessee for revision under this S. shall be accompanied by a fee of twenty-five rupees. (5) Every application by an assessee for revision under this S. shall be accompanied by a fee of twenty-five rupees. Explanation 1.- An order by the Commissioner declining to interfere shall, for the purposes of this Section, be deemed not to be an order prejudicial to the assessee. Explanation 2.-For the purposes of this Section, the Appellate: Assistant Commissioner shall be deemed to be an authority subordinate to the Commissioner." It is common ground that the assessee did not produce all the books of accounts and documents required of him by the 2nd respondent Income Tax Officer. Ext. P-1 order of assessment effected under S.144 of the Act is therefore valid and legal. The only serious question that was urged by counsel for the petitioner, Mr. Viswanatha Iyer, is that the Commissioner of Income Tax, the 1st respondent, erred in not adjudicating the validity of Ext. P-1order. In Ext. P-3 the Commissioner, the 1st respondent, has stated thus: "Admittedly no application under S.146 had been filed and accordingly it will not be open to the petitioner to question the validity of a best judgment assessment. The plea that the assessment order was received by a partner who was not aware of the provisions of S.146 is to say the least idle. There is no suggestion that the partner who received the assessment order kept it with himself without informing the other partners about the receipt of the assessment order. That the petitioner firm is aware of the provisions of S.146 is borne out by the fact that an application under S.146 had been filed for the assessment year 1976-77 when the said assessment was completed to the best of the Income Tax Officer's judgment under S.144. Accordingly it is too late in the day for the petitioner to question the validity of the best judgment assessment as he has not availed himself of the remedy provided by S.146." (emphasis supplied) 5. Counsel for the Revenue contended that if an appeal is maintainable from Ext. P-1order, in such appeal the assessee can only question the quantum fixed in the assessment; but cannot question the validity of the assessment. There is no jurisdiction or authority to go into the validity of the assessment itself. Counsel for the Revenue contended that if an appeal is maintainable from Ext. P-1order, in such appeal the assessee can only question the quantum fixed in the assessment; but cannot question the validity of the assessment. There is no jurisdiction or authority to go into the validity of the assessment itself. Reliance was placed in the decisions reported, Nabhakumar v. C.I.T (12 ITR 327 (Cal.)), Chhotelal v. C.I.T. (23 ITR 272 (All.)), Padampat v. C.I.T. (24 ITR 141 (All.)) and Mauladin v. C.I.T. (35 ITR 447 (Bomb.)) If the validity of the assessment cannot be gone into in the appeal, afortiori, it cannot be canvassed in the revision filed under S.264 of the Act as well. According to counsel for the Revenue, however wide the powers of the Commissioner may be, under S.264 of the Act, he can exercise the same "only subject to the provisions of the Act" and S.146 being one such provision which contains necessary provision for cancelling an assessment made under S.144 of the Act, it is not open to the Commissioner to go into the validity of the assessment in exercise of the powers under S.264 of the Act. According to counsel, for the assessee Mr. Viswanatha Iyer, the best judgment assessment in this case ensued due to the non production of account books and other documents and in such cases if an appeal is filed against the best judgment assessment, it is open to the assessee to canvass the validity of the assessment itself in view of the decision of the Madhya Pradesh High Court reported in Gourishankar v. C.I. T. (35 ITR 152) and that of the Andhra Pradesh High Court reported in Sundermul v. C.I.T. (66 ITR 277). Says counsel, if the position that even in an appeal the validity of the assessment can be gone into, it can be so done in the revision filed under S.264 of the Act, also. Alternatively, the petitioner's counsel contended that reading S.264 as a whole, it can be seen that the power of the Commissioner to revise any order is not subject to the provisions of this Act. The first part provides for the revision of any order. But it is only the factual passing of a particular order, which is in the later part of the Section, which will be subject to the other provisions of the Act. The first part provides for the revision of any order. But it is only the factual passing of a particular order, which is in the later part of the Section, which will be subject to the other provisions of the Act. In this view of the matter, according to petitioner's counsel, there is no bar under S.264 of the Act for the Commissioner to go into the question of the validity of the assessment effected under S.144 of the Act. 6. After hearing elaborate arguments on the rival contentions raised by the parties, it appears to me that the question as to whether in an appeal filed under S.144 of the Act, it is open to the Appellate Authority to go into the question of the validity of the assessment, does not directly arise in this case. In cases where the best judgment assessment ensued due to non production of books of accounts etc., there seems to be a conflict of opinion among the High Courts. Whereas according to Bombay High Court in the decision reported in 35 ITR 447 it is not open to question, according to Madhya Pradesh High Court in the decision reported in 35 ITR 152, it can be questioned. It is foreign to the scope of the controversy raised in this proceeding and so need not be adjudicated. The further question whether the fetter imposed by S.264 of the Act is confined to 'from passing an order' and not regarding the powers "to revise" need not be considered in this case, as it may not be necessary. We may assume, and it is true that the powers of the commissioner under S.264 of the Income Tax Act is very wide. However wide it may be, since the jurisdiction to pass orders under S.264 of the Act is a discretionary one, the Commissioner is entitled to see only whether the order complained of is according to law. It is a discretionary jurisdiction. No doubt the Commissioner should exercise the discretion in a judicial manner. In O.P. No. 2415 of 1978 (66 ITR 277) a Division Bench of this court, to which I was a party, has dealt with the scope and content of the power of revision vested in the commissioner under S.264 of the Act. He should take into account relevant and material factors and ignore irrelevant and immaterial factors. In O.P. No. 2415 of 1978 (66 ITR 277) a Division Bench of this court, to which I was a party, has dealt with the scope and content of the power of revision vested in the commissioner under S.264 of the Act. He should take into account relevant and material factors and ignore irrelevant and immaterial factors. He should pose the correct question and arrive at a decision fairly and in accordance with the principles of natural justice. Reading Ext. P-3 as a whole, I have no doubt in my mind, that the Commissioner in exercising the power of revision, adverted to the fact that the assessee had a statutory remedy to cancel the best judgment assessment under S.146 of the Act, that such a remedy was not invoked in the instant case, and that the assessee itself had filed a petition for the previous year 1976-77 and was aware of such provisions and in the light of the above circumstances, the assessee is not entitled to question the validity of the assessment, in the revision filed under S.264 of the Act, for the fast time. I do not find any error of law or error of jurisdiction in the aforesaid order, Ext. P-3 passed by the Commissioner. In exercising the discretion vested in him under S.264 of the Act, the Commissioner has adverted, to a relevant fact namely that the assessee, petitioner, had not resorted to the alternate remedy provided by the Act under S.146 to cancel the best judgment assessment (Ext. P-1). The Commissioner declined jurisdiction on that basis. It cannot be said that the 1st respondent, Commissioner, acted illegally or without jurisdiction or committed any jurisdictional error in passing Ext. P-3 order and in refusing to go into the validity of the best judgment assessment which was raised before him for the first time. I am of opinion that Ext. P-3 is proper, fair and valid in law and is not open to any attack as alleged by the petitioner. There is no material to assail Ext. P-1 either. Both Exts. P-1 and P-3 orders are valid and legal. The O. P. is without force. It is dismissed with costs.