An appeal to the Supreme Court under Article 135 of the Constitution is not available in cases where the decision or order in question is not a "judgment, decree or final order" within the meaning of Article 133 of the Constitution.

( 1 ) THIS is an application for a Certificate under Article 135 of the Constitution in respect of a decision of a Division Bench of this Court, dated May 4, 1961, whereby an application under Section 66 (2) of the Indian Income-tax Act for calling upon the Income-tax Appellate Tribunal to state a case and refer certain questions of law to this Court was summarily rejected.

( 2 ) THE petitioner is a Hindu undivided family of which one B. K. Rohatgi is the Karta. In respect of the assessment year 1944-45 the Income-tax Officer included a sum of Rs. 98,426/- as the income of the said joint family. This amount represented the remuneration paid by India Electric Works Limited to Mr. Rohatgi for services rendered by him to the Company as Managing Director under the terms of an agreement, dated January 31, 1934, between India Electric Works Limited and Mr. Rohatgi. The Income-tax Officer treated this income earned by the Managing Director as the income of the joint family and assessed it to tax as such after overruling certain contentions raised on behalf of the Hindu undivided family that the amount in question was not assessable as the income of the joint family.

( 3 ) AGAINST the order of the Income-tax Officer the petitioner filed an appeal before the Appellate Assistant Commissioner of Income-tax Range "a", Calcutta, but -the Appellate Assistant Commissioner upheld the order of the Income-tax Officer. The petitioner thereafter filed an appeal before the Income-tax Appellate Tribunal, but the Appellate Tribunal held that in view of the decision of the Supreme Court in respect of the assessment year 1943-44 it should be held that the income belonged to the joint family.

( 4 ) THE petitioner being aggrieved by the said order of the Income-tax Appellate Tribunal applied to the Tribunal for a Reference to the High Court under Section 66 (1) of the Indian Income-tax Act and for statement of a case to the High Court relating to certain questions of law mentioned in paragraph 5 of the petition. The said application under Section 66 (1) of the Act was, however, refused by the Tribunal by its order dated July 19. 1960.

( 5 ) THEREAFTER an application was made to this Court under Section 66 (2) of the Indian Income-tax Act, but the said application, as I have already stated, was summarily rejected by a Division Bench ef this Court on May 4, 1961. It is against this order of the Division Bench that the petitioner now intends to prefer an appeal to the Supreme Court.

( 6 ) ON behalf of the respondent a preliminary objection has been raised as to the maintainability of the appeal to the Supreme Court.

( 7 ) LEARNED counsel for the petitioner in answer to the preliminary objection contends that the appeal is competent under the provisions of Article 135 of the Constitution which reads as follows:"until Parliament by law otherwise provides, the Supreme Court shall also have jurisdiction and powers with respect to any matter to which the provisions of Article 133 or 134 do not apply if jurisdiction and powers in relation to that matter were exercisable by the Federal Court immediately before the commencement of this Constitution under any existing law. "

( 8 ) IT is submitted by the learned counsel for the petitioner that by reason of the provisions of the Federal Court (Enlargement of Jurisdiction) Act 1947, (Act I of 1948) and by reason of the Abolition of the Privy Council Jurisdiction Act, (C. A. Act V of 1949) the Federal Court had jurisdiction immediately before the commencement of this Constitution to entertain appeals in respect of Income-tax matters. Consequently if the decision of the Division Bench refusing the application under Section 66 (2) of the Act is not judgment, decree or final order within the meaning of Article 133 of the Constitution, then by virtue of the terms of Article 135 of the Constitution, an appeal would automatically lie to the Supreme Court from the decision of the Division Bench in question.