An order of the revising authority under S.28 of the Orissa Agricultural Income-tax Act is not prejudicial to the assessee, entitling him to a reference to the High Court under S.29(2) of the Act, unless it places him in a worse position than he was prior to the passing of the order.

Judgement

NARASIMHAM, J. :- This Special Bench was constituted to hear the preliminary question as to whether the decision of a Division Bench of this Court in- Sri Rama Chandra v. Collector of Agricultural Income-tax, AIR 1952 Orissa 281 (A) regarding the construction of the words "an order under S.28 enhancing an assessment or otherwise prejudicial to him" occurring in sub-s.(2) of S.29, Orissa Agricultural Income-tax Act, requires revision in view of the decision of the Privy Council in-Commr. of Income-tax West Punjab, North West Frontier and Delhi Provinces, Lahore v. Tribune Trust Lahore, AIR 1948 PC 102 (B) which unfortunately was not cited before the said Division Bench of this Court.

2. The petitioner was assessed to agricultural income-tax by the Agricultural Income-tax Officer, Balasore. He appealed against the assessment to the Collector of Agricultural Income-tax under S.25, Orissa Agricultural Income-tax Act. The Collector gave him partial relief and directed revision of the assessment in accordance with the instructions contained in his order dated 8-12-49. Against the appellate order of the Collector of Income-tax, the petitioner had two remedies (i) a petition in revision before the Revenue Commr. under S.28 of the Act and (ii) a petition under sub-section (2) of S.29 before the Revenue Commissioner for stating a case on a question of law arising out of the appellate order of the Collector of Agricultural Income-tax for reference to the High Court. The petitioner, however chose the former remedy and applied to the Revenue Commissioner in revision. The Revenue Commissioner granted some relief to the petitioner as regards deduction charges on produce rent, but in other respects he maintained the order of the Collector of Agricultural Income-tax. Then the petitioner applied to the Revenue Commr. under sub-s.(2) of S.29 for stating a case. But the Revenue Commissioner rejected the application observing that his order in revision was not prejudicial to the petitioner and that consequently a reference to the High Court against his order was incompetent.

3. The provisions of the Orissa Agricultural Income-tax Act are almost identical with the provisions of the Indian Income-tax Act as it stood in 1940. Under S.32 of that Act an assessee had a right of appeal to the Appellate Assistant Commissioner of Income-tax. Under S.33 the Commissioner had the powers of review which were very similar to the powers of revision conferred on the Revenue Commissioner by S.28, Orissa Agricultural Income-tax Act. Under S.66(2) of the old Indian Income-tax Act the Commissioner could refer a case on a question of law for the decision of the High Court. I am giving below the provisions of sub-s.(2) of S.66 of the old Indian Income-tax Act and the provisions of sub-section (2) of section 29, Orissa Agricultural Income-tax Act, for easy comparison.

I.T. ACT. OR.AG. I.T. ACT.

"S.66(2) -Withing sixty days of the date on which he is served with notice of an order under S 31 or S.32, or of an order under S.33 enhancing an assessmeat or otherwise prejudicial to htm, or of a decision by a Board of Reference under S.33A, 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 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, revised by the order under S.33:Provided further that, if, in exercise of his power of revision under S.33, the Commissioner decides the question, or if the Commissioner rejects the applicat