JUDGMENT
THADANI, C.J. – This is an application under Section 28 of the Assam Agricultural Income-tax Act, 1939, (Assam Act IX of 1939) arising out of an order of the Member, Assam Board of Agricultural Income-tax, Assam, dated 11th November, 1949, by which he declined to state the case to this court.
It appears that the petitioner did not appeal against the order of the Agricultural Income-tax Officer under Section 24 of the Act, but made an application under Section 27 of the Assam Agricultural Income-tax Act, 1939, by which he sought to set aside the assessment order of the Agricultural Income-tax Officer in respect of the assessment for the year 1943-44. The Commissioner of Agricultural Income-tax Assam, by his order dated 7th September, 1949, declined to interfere with the order of the Agricultural Income-tax Officer. Mr. Phukan, Member of Board of Agricultural Income-tax, Assam, declined to state the case to this Court on the ground that no point of law arose out of the order made by the Commissioner of Agricultural Income-tax, Assam, and that in any case, the order passed by the Commissioner upon the application made under Section 27 of the Act was not enhancing the assessment or an order prejudicial to the petitioner within the meaning of Section 28 (2) of the Act.
We think the view taken by the Member, Assam Board of Agricultural Income-tax, is in accordance with the view taken by the privy Council in Commissioner of Income-tax, Punjab, N. W. F. and Delhi provinces, Lahore v. Tribune Trust, Lahore. It is true that their Lordships of the Privy Council in the case to which we have referred were dealing with a case from the point of view of section 66(2) and 33 of the Indian Income-tax Act. Nevertheless we think the interpretation put upon the words “order prejudicial to the petitioner” by their Lordships of the Privy Council one which is equally applicable to the relevant words contained in section 28(2) of the Assam Agricultural Income-tax Act. At the bottom of page 317 of the report appear the following observations of their Lordships of the Privy Council :-
“Their Lordships have felt much doubt whether they should refer to the procedural point which arises under Section 33 and 66, sub-section (2), i.e., whether, where the Commissioner acting under Section 33 makes an order refusing to set aside an assessment, his order is otherwise prejudicial to the assessee, so that the latter can under Section 66, sub-section (2), require him to refer any question of law arising from such order to the High Court. This question was raised before the High Court at an earlier stage in these proceedings and the decision of that court was not appealed. On the present appeal the learned counsel for the appellant has places in the forefront of his case the contention that there was no order by the Commissioner prejudicial to the assessee out of which any of the questions of law decided by the High Court could be said to have arisen. From this the conclusion is drawn that there was no jurisdiction in the High Court to entertain the reference. Having decided this case on the merits adversely to the respondents so that, in any case, they must humbly advise His Majesty that this appeal should be allowed, their Lordships think it is not strictly necessary to decide the point. But having heard argument upon it and considered the conflicting decision in the Courts of India, they have come to a clear conclusion which they think it right to express. It appears to them that an order made by the Commissioner under Section 33 can only be said to be prejudicial to the assessee when he is, as a result of it, in a different and worse position than that in which he was placed by the order under review. If the assessee has a complaint against any assessment or order made by a subordinate officer, he has the appropriate and specific remedy which the Act provides. The Commissioner may act under Section 33 with or without the invitation of the assessee; if he does so without invitation, it is clear that, if he does nothing to worsen the position of the assessee, the latter can acquire no right; the review may be a purely departmental matter of which the assessee knows nothing. If, on the other hand, the Commissioner acts at the invitation of the assessee and again does nothing to worsen his position, there is not justification for giving him a new right of appeal. He has a specific right of appeal against the assessment or order of the subordinate officer, which is subject to its own time limit. That he cannot enlarge by taking a course which is on his part purely voluntary. This view of the section is confirmed by the exception. For it is proper that, where the Commissioner does make an order which worsens the position of the assessee, the latter should have a right of appeal, since against that order he has no other right. It is further confirmed by the proviso to section 66, sub-section (2), which limits a reference from an order under Section 33. To cases where the question of law arises our of that order itself an excludes it where the question of law arises out of the a previous order under a section 31 or section 32 which is revised under section 33. In the case in which could not to be otherwise the subject of appeal; in the case in which it is excluded, the point of law was on that could already have been appealed under the appropriate section. For these reasons, their Lordships are of opinion that a reference does not lie from an order under Section 33 unless that order is prejudicial to the assessee in the sense that he is in a worse position than before the order was made. Applying that principle to the present case, their Lordships are of opinion that, as the Commissioner did not enhance the assessments made upon the respondent or otherwise alter his position for the worse, the reference was from the outset incompetent. They would only add that the respondent could not make an otherwise incompetent reference competent by adducing a reason for setting aside the assessment which was not available to it at the date of the assessment.”
This view of their Lordships of the Privy council has been given statutory effect by the insertion of the 2nd Proviso to sub-section (2) of section 33A of the Indian Income-tax Act which enacts that an order by the commissioner declining to interfere will not be deemed to be an order prejudicial to the assessee.
It was contended by the applicants advocate that as no proviso analogous to the 2nd proviso contained in section 33A of the Indian Income-tax Act has been enacted in the Assam Agricultural Income-tax Act, 1939, the observation of their Lordships of the Privy Council cannot be said to apply to ascertain the meaning of words used in Section 28(2) of the Assam Agricultural Income-tax Act. We are unable to accept this contention. The relevant words in Section 28(2) of the Assam Act, namely, “an order under Section 27 enhancing an assessment or otherwise prejudicial to him” must bear the same interpretation as has been put upon them by their Lordships of the Privy Council on words used in Section 33 of the Indian Income-tax Act.
The result is that we decline to order the Assam Board of Agricultural Income-tax to state the case to this Court. The petition is rejected with costs.
RAM LABHAYA, J. – I agree.
Petition rejected.
