JUDGMENT
STONE, C.J. – This matter comes before us in a somewhat irregular way owing, it would seem, to a clerical slip on the part of a Reader in the conclusion of the ex parte application which was moved on February 1, 1935, the order upon which was noted in the following words : “Notice to Commissioner of Income-tax to state the case”. It is the practice of this High Court, and was the practice of the Judicial Commissioners Court, when ex parte applications were made to the Court asking the Court to call upon the Commissioner of Income-tax to show cause why a case should not be stated, for the Court either to dissmiss the applicantion or if it enterained it, to give notice to other side to show cause and it must be that the Commissioner who passed the order in question intended that the Commissioner was given notice to show cause. Otherwise the use of the word notice is meaningless. We have accordingly treated this matter as one arising on such notice being given, and have consequently considered whether this is a case in which the Commissioner should be ordered to state a case in which the Commissioner should be ordered to state a case on a particular point of law which, had we decided that the Commissioner should be called upon to state a case, would then have been argued before us.
The question is covered by the decision of a Bench of the Madras High Court in Venkatachalam Chettiar v. Commissioner of Income-tax, Madras. It can be stated as follows : The scheme of Sections 30, 31, 32, 33 and 66, Income-tax Act, appears to be as follows : An assessment having been made under Section 30 an appeal lies at the instance of the assessee to the Assistant Commissioner. The Assistant Commissioner having heard the appeal according to the provisions of S.31 gave his order as provided by that section, and from that order, or from an order passed under Sec.28, an appeal lies in certain cases, and in certain cases only under the provisions of S.32. It is common ground that the present is not such a case so that the matter here in dispute was finally decided by the Assistant Commissioner subject to two rights possessed by the assessee : the one is under S.33, the other is under S.66.
Section 33 which in terms is a section empowering the Commissioner to act suo motu is in practice a section used by assessees as the foundation for application to be made to the Commissioner to review orders passed by an Assistant Commissioner. That practice was pursued here. The same arguments were advanced by the assessee before the Assistant Commissioner and the Commissioner; different reasons were given by those two officers for the same conclusion. The result therefore was that the review was refused. The result of that was that the assessee was left in the same position as he was after the Assistant Commissioners order had been passed save that he had no further right to go in review to any other authority unless he retains the right to refer to the High Court under S.66. S.66 gives him a right to have the matter referred to the High Court within a given time, where the order that he is complaining of is an order of a particular kind made under S.33. The words of the Section [S.66(2)] are : “an order under S.33 enhancing an assessment or otherwise prejudicial to him.”
In such a case there is a power to require a point of law to be referred, subject to certain provisions of which the material one here is as follows :
“Provided that a reference shall lie from an order under S.33 only on a question of law arising out of that order itself, and not on a question of law arising out of a previous order under S. 31 or S. 32, revived by the order under S. 33.”
Venkatachalam Chettiar v. Commissioner of Income-tax, Madras, decided that where the Commissioner operating under S. 33 refuses to review the order of the Assistant Commissioner the position of the assessee not being altered as a consequence, the assessee is not prejudiced. Bearing in mind the fact that the Assistant Commissioner is the final Court of appeal in cases such as the present we respectfully agree with that conclusion. Further in this case, in our opinion, there is another difficulty in the assessees way, because although the Commissioner decided more points of law than the Assistant Commissioner decided, both decided a coincident point of law, and it is common ground that the point being decided as it was, it concludes the matter against the assessee and the other point do not arise. Thus, one has here a decision on a question of law that did not merely arise out of the order itself but also arose out of the previous order. It is true that in this case the previous order. It is true that in this case the previous order was not revised by the order under S. 33; but our present impression is that the true intent of the first proviso to the second sub-section of S.66 is that a question of law that is common to both Assistant Commissioners and the Commissioners order is not a proper subject-matter of a reference unless the question of law is raised on a reference from the decision of the Assistant Commissioner which is not the case here. However, our attention has been drawn to a letter which the assessees received from the income-tax authorities which, in our opinion invited some sort of a reference to that made in this matter.
The application is accordingly dismissed but we fix the costs at Rs. 50 only.
Application dismissed.
