HARIHAR GIR SIR MAHANT Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THE sole question for determination by this specially constituted Bench is whether the application of the petitioner for leave to appeal to His Majesty in Council is maintainable under clause 31 of the Letters Patent of this Court. THE application was also headed under Section 110 of the Code of Civil Procedure but learned counsel, while moving this application, rightly conceded that he had no right to invoke the jurisdiction of this Court under Section 110 of the Code of Civil Procedure.

(2.) THE circumstances under which this application came to be presented may be shortly stated. THE applicant was assessed to income-tax for the year 1938-39 by the Income-tax Officer, Gaya, on October 15, 1938, on an assessable income of Rs. 72,080 against a total income of Rs. 23,658 returned by the assessee. THE appeal to the Appellate Assistant Commissioner met with a partial success in that the assessable income was reduced by Rs. 4,000 only. Against this order dated the 31st July, 1939, the assessee moved the Commissioner of Income-tax to exercise his powers of revision under Section 33 of the Indian Income-tax Act of 1922 (hereinafter referred to as the Act) and also desired that he should state certain questions of law for the opinion of the High Court under Section 66 (2) of the Act. THE Commissioner by order dated February 21, 1940, declined to interfere. By an order of the same date (both these orders appear to have been actually signed on February 24) he refused to refer to the High Court the questions formulated by the assessee on the ground that these questions were really questions of fact. Against this refusal of the Commissioner to make a reference to the High Court the assessee moved a Bench of this Court to exercise their powers under Sec. 66(3) of the Act. But the application was summarily rejected on August 5, 1940, and the income-tax authorities were allowed to retain as their costs the sum or Rs. 100 lying in deposit with them, this being the amount of fee which accompanied the application under Section 66(2) as required by the statute.