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TMI Blog1941 (3) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the assessee. The appeal to the Appellate Assistant Commissioner met with a partial success in that the assessable income was reduced by ₹ 4,000 only. Against this order dated the 31st July, 1939, the assessee moved the Commissioner of Income-tax to exercise his powers of revision under Section 33 of the Indian Income-tax Act of 1922 (hereinafter referred to as the 'Act') and also desired that he should state certain questions of law for the opinion of the High Court under Section 66(2) of the Act. The Commissioner by order dated the 21st February 1940, declined to interfere. By an order of the same date (both these orders appear to have been actually signed on the 24th of February) he refused to refer to the High Court the questions formulated by the assessee on the ground that these questions were really questions of fact. Against this refusal of the Commissioner to make a reference to the High Court the assessee moved a Bench of this Court to exercise their powers under Sec. 66(3) of the Act. But the application was summarily rejected on the 5th of August, 1940, and the income-tax authorities were allowed to retain as their costs the sum of ₹ 100 lying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uot; and, therefore, it was held that the appeal to His Majesty in Council was incompetent. After that decision the Act was amended on the 1st of April, 1926, by Act XXIV of that year. An attempt was made in the case of Delhi Cloth and General Mills Company, Ltd. v. Commissioner of Income-tax, Delhi [1927] 54 I.A. 421; 2 I.T.C. 439 to prefer an appeal to His Majesty in Council against the decision of the High Court at Lahore on reference to that Court under Section 66(2) of the Act as it stood before its amendment in 1926. Lord Blanesburgh in delivering the judgment of the Board pointed out that "until the case of Tata Iron and Steel Company, Ltd. v. Chief Revenue Authority of Bombay [1923] 50 I.A. 212; 1 I.T.C. 206, was decided by the Board, it was apparently generally supposed in India that appeals from such orders were regulated by Sections 109 and 110 of the Code of Civil Procedure, to which reference has already been made. The effect of the judgment in the case cited was, however, definitely to lay it down that from these orders there was, in fact, no statutory right of appeal at all. And such was the position until the 1st April, 1926, when the Indian Income-tax (Ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin the terms of this clause, that is to say, it must be either a final judgment or a final decree or a final order. After the decision in the Tata Iron and Steel Company's case [1923] 50 I.A. 212; 1 I.T.C. 206 where this question was expressly decided, it cannot be held that the order passed by this Court on the 5th August, 1940, was either a final judgment or a final decree or a final order as required by clause 31 of the Letters Patent. But it was argued that the order of the High Court refusing to require the Commissioner of Income-tax to state a case was a final order in the sense that it was final between the parties. I am un- able to agree with this contention because the order of the High Court merely meant that they were not satisfied that any materials were to be found in the application then presented which would induce them to consider even prima facie that there was any necessity to advise the Commissioner. It is difficult to understand how such an order can be held to be a final order when if the High Court had admitted the application and then passed the same order, that order would not be a final order within the meaning of clause 31 of the Letters Patent. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the opinion raises points of law which should be referred by the Commissioner of Income-tax to the High Court and directs a reference to be made and on the reference to the High Court answers those questions against the assessee. That assessee has not got an appeal as of right to the Privy Council at all, although prima facie he had an arguable case on a point or points of law; and he can only appeal to the Privy Council if the High Court certifies that the case is a fit one for appeal. He is thus in a much less favourable position than the person who presents to the High Court an utterly frivolous application for a reference to the Income-tax Commissioner. That seems to me to be a rather striking example of what would be the result of the contention put before us to-day if it were the correct one. In my opinion no appeal lies." Apart from the view taken by the Lahore High Court in Feroze Shah v. Commissioner of Income-tax, Punjab and N.W. F. Province, Lahore [1931] 5 I.T.C. 198 the current of authority of the other High Courts seems to be in favour of the view that no appeal lies to His Majesty in Council under the Letters Patent from an order of the High Court dismissing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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