TMI Blog1934 (3) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... der under Section 31 or of Section 32 or of the making of a decision by a Board of Referees under Section 33-A the assessee in respect of whom the order or decision was passed may, by application accompanied by a fee of one hundred rupees or such lesser sum as may be prescribed, require the Commissioner to refer to the High Court any question of law arising out of such order or decision, and the Commissioner shall, within sixty days of the receipt of such application, draw up a statement of the case and refer it with his own opinion thereon to the High Court: Provided that, if, in exercise of his power of revision under Section 33 the Commissioner decides the question, the assessee may withdraw his application, and if he does so, the fee paid shall be refunded. (3) If, on any application being made under sub-section (2), the Commissioner refuses to state the case on the ground that no question of law arises, the assessee may, within six months from the date on which he is served with notice of the refusal, apply to the High Court, and the High Court, if it is not satisfied of the correctness of the Commissioner's decision, may require the Commissioner to state the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form or the substance of these questions, because the Commissioner refused, and, in ray opinion, rightly refused, to state a case or to refer either of these questions for determination by the High Court, upon the ground that the application requiring him to refer these questions was out of time. The assessees then applied to the High Court under Section 66(3), for an order requiring the Commissioner to state a case and refer these two questions for the determination of the High Court. At the hearing of the application for the mandamus it was conceded that the assessees were not entitled to apply for an order requiring the Commissioner to refer either of these two questions, because admittedly the application in that behalf had been presented to the Commissioner out of time. It is to be observed that in future different considerations will arise in this connexion, having regard to the provisions of Act XVIII of 19.13 Section 28(d) and (e). On behalf of the assessees, however, it was contended that the Court had power, under Section 66(3) or Section 66(1) to order the Commissioner to state a case and refer any question of law which the Court was of opinion arose out of the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial machinery whereby the Commissioner or the assessee should be enabled to obtain the opinion of the High Court upon any question of law arising in the course of the assessment. The jurisdiction with which the High Court is invested under the Income-tax Act, 1922, however, is of an exceptional nature, and I apprehend that the intention of the legislature in enacting Sections 66 and 66-A was to provide that the only procedure available for obtaining a reference by way of case stated should be that prescribed under those sections. 6. Under Section 51 of the earlier Income-tax Act (VII of 1918) an assessee desirous of obtaining the opinion of the Court upon a question of law which arose in the course of an assessment upon him must needs, pursuant to Section 51(1) of that Act file an application under Section 45, Specific Relief Act: Alcock Ashdown Co., Ltd. v. Chief Revenue Authority, Bombay AIR 1923 PC 138. But since the enactment of the Income-tax Act of 1922, in my opinion, he is no longer entitled to have recourse to Section 45, Specific Relief Act, but must proceed under Section 66(2) of the Act of 1922, which now includes also orders of the Commissioner under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw that arise as Mukerji and Niamatullah, JJ., decided in the cases to which reference has been made. The result of acceding to such a contention would be that any assessee who is dissatisfied with the assessment that has been made upon him would be able to require the Commissioner to refer to the High Court any alleged question of law however absurd, under Section 66(2), on the chance that the Court itself, at the hearing of the application for mandamus under Section 66(3) might be able to unearth some point of law which had not been raised before the Commissioner and upon which the Commissioner had never had an opportunity of expressing his opinion. That, I apprehend, could not have been the object, and is not the effect of Section 66(3) of the Act; and the view that I have expressed as to the true construction of Section 66 would seem to find support in the following observations of Lord Macmillan when delivering the judgment of the Board in Commissioner of Income-tax, Bihar and Orissa v. Maharajahdhiraja of Darbhanga at p. 146 (of 60 I.A.): The Commissioner unfortunately omitted to formulate any question of law arising out of this transaction. The duty of the High ..... X X X X Extracts X X X X X X X X Extracts X X X X
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