Judgement

Appeal (No. 26 of 1932) from a refusal by the High Court (November 28, 1929) to make an order

Law Rep. 60 Ind. App. 325 ( 1932- 1933) Feroz Shah V. C ommissioner of Income-Tax, Punjab

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under s. 66, sub-s. 3, of the Indian Income-tax Act, 1922, requiring the Commissioner of Income-tax to state a case.

The appeal arose out of an assessment upon the appellant to income-tax for the year 1927-8 under the above Act in respect of the profits of his business as a timber merchant.

The material facts and provisions of the Act appear from the judgment of the Judicial Committee.

An application by the appellant to the High Court for a certificate that the matter was a fit one for appeal to the Privy Council was referred to a Full Bench. Broadway J., with whose judgment Dalip Singh and Tapp JJ. agreed, held that the decision of the High Court refusing to require the statement of a case was a final judgment passed by the Court in its original jurisdiction, and that, as the amount in dispute exceeded Rs. 10,000, the applicant had a right of appeal to the Privy Council under clause 29 of the letters patent of the High Court. The judgment is reported at I. L. R. 12 Lah. 166.

1933. Jan. 26, 27 ; April 5. Wallach for the respondent. The appeal is not competent under clause 29 of the letters patent or otherwise. The judgment of the Board in Tata Iron and Steel Co. v. Chief Revenue Authority, Bombay (( 1923) L. R. 50 I. A. 212.) establishes that a decision of the High Court upon a case stated under s. 66 of the Indian Income-tax Act, 1922, is merely advisory and is not a " final judgment, decree or order." The High Court in dealing with the application under s. 66, sub-s. 3, was merely exercising an incident of its advisory jurisdiction. Secondly, the High Court was not exercising its original jurisdiction, which is that given by clauses 9, 24 and 25 of the letters patent. [See also the Punjab Courts Act, 1918, ss. 24, 25.] Further, s. 106, sub-s. 2, of the Government of India Act, 1915, excludes the jurisdiction of the High Court in revenue matters ; s. 131, sub-s. 3, and Sch. V., reserve power to the Indian Legislature to alter that provision. Sect. 66, sub-s. 3, of the Act of 1922, however, merely authorizes the High Court to require a case to be stated if the High Court " is not satisfied " with the Commissioners refusal to do so, and gives no right of appeal from a refusal by the High Court to exercise that discretionary power. Sect. 66a, enacted in 1926, first gave a right of appeal from decisions under s. 66 ; the right of appeal is confined to that thereby given. Alcock, Ashdown & Co. v. Chief Revenue Authority, Bombay (( 1923) L. R. 50 I. A. 227.) does not apply, because that decision was based upon s. 45 of the Specific Relief Act, 1877, which applied only to the High Courts at Calcutta, Madras and Bombay, but was extended to Rangoon in 1923. The High Court at Rangoon held in E. M. Chettyar Firm v. Commissioner of Income-tax (( 1930) I. L. R. 8 Ran. 435.) that under clause 37 of the letters patent of that Court (which is the same as clause 29 here in question) no appeal lay to the Privy Council from a refusal to order a case to be stated under s. 66 of the Act of 1922.

Roland Burrows K.C. and R. P. Hills for the appellant. Under clause 37 of the letters patent the Indian Legislature had power to extend the original jurisdiction of the High Court, and by s. 66, sub-s. 3, of the Act of 1922 it did so. Even if a decision by the High Court upon a case stated is merely advisory, a decision whether it shall or shall not require the Commissioner to exercise his power under

s. 66, sub-s. 2, is of a different nature and is a final judgment or order within clause 29 of the letters patent Alcock, Ashdown & Co.s case. (( 1923) L. R. 50 I. A. 227.) It is true that that case was decided under s. 45 of the Specific Relief Act, but the duty of the Commissioner to state a case under

s. 66, sub-s. 2, is similar to the duty thereby conferred.

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