Income Tax Appellate Tribunal - Nagpur
Seth Mathuradas vs Commissioner Of Income Tax, C. P. And U. ... on 15 December, 1939
Equivalent citations: [1940]8ITR412(NAG)
ORDER
This is an application for review of our judgment passed in an income-tax matter. A preliminary objection is taken that no review lies. It is taken on two points : (1) that we are a special tribunal and that our judgment does not amount to a decree or order but is a judicial expression of opinion, and (2) that even if the Civil Procedure Code applies no review lies.
The second question need not be considered if it is found that the Civil Procedure Code does not apply to these matters. Council for the applicant lays stress on an observation of their Lordships of the Judicial Committee in Commissioner of Income-tax, Bihar & Orissa v. Maharajadhiraj of Darbhanga where Lord Macmillan observes as follows : "Their Lordships have also been embarrassed in disposing of the appeal by the absence of a formal decree by the High Court following upon their judgment of the 25th November, 1929." It is accordingly said that their Lordships of the Judicial Committee have laid it down that when a High Court considers a reference under Section 66 of the Income-tax Act their judgment should be and must be followed be the decree : accordingly their judgment is a judgment within the meaning of that term in Section 2 of the Civil Procedure Code; the procedure followed is that in the Civil Procedure Code, and accordingly it is argued that the power of review conferred by Section 114 of the Civil Procedure Code applies.
Section 66 of the Income-tax Act provides for the statement of a case by the Commissioner to the High Court.
It is said alaternatively by counsel for the applicant that when the Commissioner so states a case it is as though he and the assessee had come to an agreement to state a case within the meaning of Order XXXVI of the Civil Procedure Code, and accordingly one is here dealing with a procedure similar to the special case procedure provided for by the Order and that the Court gives its judgment within the power conferred by Order XXXVI, Rule 5, that thereafter a decree must follow, and that that decree would of course be receivable under the powers conferred by Section 114.
When, however, one comes to look at the scheme of Section 66 of the Income-tax Act, one finds that the Commissioner may operate either on his own motion or on reference from any Income-tax authority subordinate to him and having decided to state a case he refers it to the High Court with his own opinion for their consideration. In certain cases if he refuses to state a case application can be made to the High Court for an order calling upon the Commissioner to state a case. Where he acts on his own motion or on reference or under compulsion the matter comes before the High Court in a consultative capacity and under the provisions of Section 66 (5) the High Court having heard the case decides the question of law, delivers its judgment thereon, and does not drawn up a decree but forwards a copy of its judgment under the seal of the Court and the signature of the Register, and the Commissioner hereupon disposes of the case, or, if the case arose on a reference from any Income-tax authority subordinate to him, forwards a copy of the judgment to such authority who disposes of the case conformably to that judgment.
In Tata Iron and Steel Co., Ltd., v. Chief Revenue Authority of Bombay, their Lordships of the Judicial Committee were considering whether such a judgment resulted in a final judgment, decree, or order which was applicable to His Majesty in Council under the provisions of the Letters Patent. It was assumed by everybody that it was not appealable under the provisions of Section 109 of the Civil Procedure Code. Yet if the argument addressed to us by counsel for the applicant were correct, that is to say that this is a judgment which should be followed by a decree of a Civil Court acting in its Original Jurisdiction, it is difficult to see why appeal would not lie under Section 109 of the Civil Procedure Code. But in Tata Iron and Steel Co., Ltd. v. Chief Revenue Authority, Bombay, it was hardly disputed that no appeal lay under the Civil Procedure Code. The argument was that Letters Patent Appeal lay and it so lay because the conclusion of the High Court was a final judgment, decree or order within the meaning of the Letters Patent. Their Lordships, however, decided that it was not.
In Delhi Cloth Mills v. Income-tax Commissioner, Delhi, their Lordships held that Section 66-A of the Income-tax Act had no retrospective effect.
In Emperor v. Kajori Mal Kalyan Das, it was held, for the reason that this kind of an opinion is not a decree or order, that there could be no review of such a judgment. In Commissioner of Income-tax, Bengal v. Hungerford Investment Trust, Ltd., it was held that the Court when acting under the powers conferred by Section 66 of the Income-tax Act was exercising a special jurisdiction and that its proceedings were not governed by the Code of Civil Procedure and that no review lay.
It seems to us to be reasonably plain that these proceedings are not subject to the provisions of the Code of Civil Procedure when one sees the terms in which Section 66-A is drafted. That section was though to be necessary because there had been some doubt as to whether appeal lay, a doubt which we regard as settled by Tata Iron and Steel Co., Ltd. v. Chief Revenue Authority, Bombay. It gives power of appeal to His Majesty in Council in the following terms :-
"(1) When any case has been referred to the High Court under Section 66, it shall be heard by a Bench of not less than two Judges of the High Court and in respect of such case the provisions of Section 98 of the Code of Civil Procedure, 1908, shall, so far as may be, apply notwithstanding anything contained in the Letters Patent of any High Court established by Letters Patent or in any other law for the time being in force.
* * * (3) The provisions of the Code of Civil Procedure, 1908, relating to appeals to His Majesty in Council shall, so far as may be, apply in the case of appeals under this section in like manner as they apply in the case of appeals from decrees of a High Court".
There are a number of similar provisions all of which are in consistent with the view that the tribunal determining the questions referred under Section 66 of the Income-tax Act is operating as a Civil Court so as to attract the provisions of the Civil Procedure Code.
It follows, in our opinion, that no review lies. The preliminary objection is accordingly upheld and the application is dismissed with costs. We fix pleaders fee at Rs. 50.
Application dismissed.