Art. 133 of the Constitution does not apply to appeals under S.66 of the Income-tax Act; certification of fitness is the relevant criterion for appeals.

1. The question raised in this case is whether Art.133 of the Constitution is attracted to a decision given by this Court under S.66(1) of the Indian Income - tax Act.

2. The Commissioner of Income - tax seeks to file an appeal to the Supreme Court against a decision of this Court answering a reference under S.66(1) against the Department on the following question.
"Whether on the facts and in the circumstances of this case the erstwhile family house properties have been partitioned among the four members in definite portions for the purpose of S.25A of the Indian Income - tax Act, 1922?"

3. Taking all the facts and circumstances of the case we reached the conclusion that a partition had taken place among the members of the assessee family and that the erstwhile family house properties had been partitioned among the four members in definite portions within the meaning of S.25A (1) of the Income - tax Act and that in this case it was not necessary that the erstwhile family, house properties which were made the assets of the partnership should be divided by metes and bounds so as to entitle the assessee to apply under S.25A (1) to an order that partition had taken place among the members of the assesses family. In support of our conclusion, reliance was placed on the ruling of the Supreme Court in Charandas Haridas v. Commissioner of Income - tax, Bombay North, Kutch and saurashtra Ahmedabad , AIR 1960 SC 910 .

4. Dissatisfied with our order, the Department desires to file an appeal to the Supreme Court.

5. It is urged on behalf of the Commissioner that he is entitled to leave, as we reversed the finding of the Income - tax Appellate Tribunal and as the value of the subject - matter of the dispute is above Rs.20,000/- and as such the requirements of Art.133(1) of the Constitution are satisfied. That being the position, we will be obliged to give leave if the matter falls under Art.133 of the Constitution.

6. But the point is whether Art.133 of the Constitution governs a reference under S.66 of the Indian Income - tax Act. In our judgment, Art. 133 could not apply to a decision on a reference under S.66 of the Indian Income - tax Act. It looks to us that Art.133 contemplates a judgment or decree passed by this Court in its appellate jurisdiction, as could be seen from the expression "the subject - matter of dispute in the Court of first instance and still in dispute in appeal etc....." This Court does not exercise any appellate jurisdiction in answering references under S.66(1) or 66(2) of the Income - tax Act. It acts only in consultative and advisory capacity while giving decisions under this section. Further, as pointed out by Chagla C. J. in Jamanadas Prabhudas v. Commissioner of Income - tax, Bombay , ILR 1953 Bom. 549 : (AIR 1952 Bom. 479).
"Judgment, decree or final order" is a compendious expression and each one of the parts of this expression bears the same connotation, viz., that there is an adjudication by the Court upon the rights of the parties who appear before it".
It looks to us that the word 'judgment' is used in the sense of a final declaration or determination of the rights of parties and a decision on merits and would not cover opinions given by this Court in its advisory jurisdiction.

7. That apart, in solving the problem presented before us, it is pertinent to note that the Indian Income - tax Act makes a provision for the High Court issuing a certificate of fitness for appeal to the Supreme Court that S.66A (2) is in these words.
"An appeal shall lie to the Supreme Court from any judgment of the High Court delivered on a reference made under S.66 in any case which the High Court certifies to be a fit one for appeal to the Supreme