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TMI Blog1921 (3) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... sly excluded by any law for the time being in force." The Advocate-General contended that the order under appeal is excluded by Section 106 of the Government of India Act 1915, and also relied on the provisions of Section 52 of the Indian Income Tax Act which apparently were not brought to the notice of the learned Judge. The Government of India Act is a consolidating statute which in Section 106 has re-enacted the prohibition which was expressly imposed upon the Supreme Court of Bengal in 1780 after the well-known conflict with Warren Hastings and was applied by reference to the Supreme Courts of Madras and Bombay when they were erected in the early part of last century. The prohibition as contained in Section 8 of the East India Company Act 17 SO was in the following terms " the said Supreme Court shall not have or exercise any jurisdiction in any matter concerning the revenue or concerning any act or acts ordered or done in the collection thereof according to the usage and practice of the country, or the regulations of the Governer-General in Council," and a very wide construction was put upon the section by the Privy Council in Spooner v. Juddow 4 M.I.A. 353. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncerning the revenue". The case appears to me to come within the plain meaning of the section, and this was not very seriously disputed. The learned Judge has referred to some observations of Sir Thomas Strange in Venkata Runga Pillai v. The East India Coy.1 Strange 153 , but his attention does not appear to have been called to the very wide interpretation put upon the section by the Privy Council in Spooner v. Juddow 4 M.I.A. 453. 5. As already observed the effect of the proviso to Section 45 was to leave the old statutory restriction in full force. This, however was not one of the statutory provisions which the Indian Legislature was prohibited from altering under the Indian Councils Act, 1861, and Section 131(3) of the Government of India Act, 1915, and the fifth schedule thereto expressly recognises, the power of the Indian Legislature to repeal or alter the provisions of Section 106. Now, these provisions have been to some extent altered by Section 51 of the Indian Income Tax Act, 1918, which obviously confers jurisdiction on the High Court to proceed on a reference from a revenue authority under the provisions of the section. That section not only enables the Revenue Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 91 2 Q.B. 463 and Revd. Williams In re (1873) L.R. 9 C.P. 62 and the provision in Section 3(2) of the General clauses Act, 1897 that "words which refer to acts done extend also to illegal omissions." 7. There is no suggestion of any want of good faith on the part of the Chief Revenue Commissioner in the present case, and therefore, the present proceeding is in my opinion prohibited by the express terms of Section 52 of the Act itself. The effect of Section 52 is to extend to subordinate courts and to the High Court in the exercise of its appellate jurisdiction tjie prohibition imposed upon the High Court in the exercise of its original jurisdiction by Section 106 of the Government of India Act as regards acts done by the revenue authority in good faith. Further, as at present advised I am not satisfied that there are any sufficient grounds for holding that the effect of Section 51 is to partially repeal Section 106 even to the limited extent of allowing the High Court to exercise Original Jurisdiction when there are allegations of bad faith. It is however unnecessary to decide this question. 8. Much argument has been addressed to us as to the nature of the duty imposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as regards the application of Section 106 Government of India Act, 1915, have nothing to add. 11. The alternative ground, on which the judgment under appeal has been supported, is that under Section 51(1) Act VII of 1918 the making of.the reference asked for is in the words of the proviso to Section 45 Specific Relief Act clearly incumbent on the Chief Revenue authority, against whom an order under the latter section is claimed; and it is thus necessary to consider the wording of the former closely, since it is on it and not on any general rule as to the duties imposed by other statutes in different or wider terms on public officers or public or associated bodies tha't our conclusion must rest. So far moreover as the numerous well known cases, which have been laid before us require adherence, whatever the nature of the duty to be performed or procedure to be employed, to the principle of natural justice and an honest exercise of the discretion conferred, they are not in point, because their requirements were clearly fulfilled in the present case, the commissioner of Income Tax, the authority concerned, having, as his order shows, heard counsel and having dealt adequately with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is frivolous or that a reference is unnecessary;" and it is with the latter alternative that we are directly concerned. For the assessee before us contends that "unnecessary" means only "unrelated to any issue arising necessarily in the course of assessment" and that the court is to determine whether the issue in question is of that nature. There are two fundamental objections to this, which I think, are valid; firstly that it refuses effect to the requirement that the Revenue Authority shall be satisfied, substituting as the test of the necessity for the reference that this Court shall be so; and secondly that it restricts the meaning of "unnecessary" inconsistently with the ordinary use of the word. On the first of these there is no reason for assuming that frivolous applications excepted, this Court has been given an unrestricted jurisdiction, where previouly it had none; on the second, it is the reference, not a determination of the question referred, which is described as unnecessary and there is no reason for excluding from the class of questions under contemplation those, which the Revenue Authority in fact does determine unaided. Shortly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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