M CT MUTHIAH Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THIS petition involves virtually the proper construction of the proviso to section 66(1) of the Indian Income-tax Act. Section 66 enacts :

(2.) THE assessment of the petitioner was referred for investigation to the Income-tax Investigation Commission. THE Commission after enquiry submitted a report to the Central Government and on the basis of this order an assessment was made against the petitioner. THEreafter the petitioner made an application to the Commissioner of Income-tax under section 8(5) of the Taxation on Income (Investigation Commission) Act, 1947, for directing a reference of certain questions of law for the decision of the court. Section 8(5) of the Taxation on Income (Investigation Commission) Act, 1947, enacted :

(3.) IN these circumstances, these reference applications have become infructuous and are accordingly rejected." This order was communicated to the advocate of the petitioner on his behalf. The exact date on which the order was served upon the advocate is not clear but nothing much turns on it. But the next matter to be noticed is that on May 10, 1956, the petitioner through his advocate requested the Commissioner to refund to him the fee of Rs. 100 paid in respect of the application. It may be mentioned that there were 20 applications for reference, C.R.A. Nos. 1 to 20, where the questions raised were common and the order of the Commissioner dated April 11, 1956, as well as the application for the refund was in regard to all the 20 reference applications. The Commissioner however wrote back on May 17, 1956, to say that the reference fees paid were not refundable. The petitioner's advocate sent a further communication dated July 29, 1956, in the course of which he drew the attention of the Commissioner to the relevant statutory provisions and pointed out that the action of the Commissioner amounted to a refusal to state a case which entitled the assessee to a refund he having within 30 days applied for the refund thus intimating his having withdrawn the application. The Commissioner persisted in declining to refund his fees and the petitioner has filed this petition invoking the jurisdiction of this court under article 226 of the Constitution to direct the Commissioner to make the refund.As I said in the opening, the right of the petitioner to the relief turns upon the proper construction of section 66 of the INcome-tax Act though at one stage Mr. Jagadisa Ayyar, learned counsel for the petitioner, made some submissions on the footing that even if the statute did not apply, the petitioner would be entitled to relief at common law.