NAZAR ALI ISABHAI Vs. COMMISSIONER OF INCOME-TAX

JUDGEMENT

(1.) THE petitioner filed an application under Section 66(2), Income-tax Act, and prayed for a writ of mandamus on the Commissioner of Income-tax, Central Provinces and United Provinces, calling upon him to state the case and refer the same to the High Court for decision. On 10th August 1942 this Court issued a notice to the Commissioner of Income-tax calling upon him to show cause why mandamus should not be issued. On service of this notice the Commissioner of Income-tax filed an application on 16th November 1942 stating that the Commissioner of Income-tax refused to state the case when the applicant made an application before him under Section 66(2) on 30th September 1941, and when a copy of that order was served on the assessee on 6th October 1941 the assessee made an application on 3rd November 1941 to the Commissioner requesting him to permit him to withdraw his application under Section 66(2) and praying, for refund of the deposit of Rs. 100; the Commissioner acceded to the request of the assessee and ordered the Income-tax Officer, Khandwa, to refund the deposit, which was eventually done. Under the circumstances, the Commissioner of Income-tax stated, the petitioner was not entitled to pursue his application for reference in the High Court.

(2.) THE assessee admits that he did apply as stated by the Commissioner of Income-tax and has obtained Rs. 100 that he had deposited in the income-tax department. He however contends that after getting back the deposit he again deposited the same amount with the Commissioner and that he is entitled to continue his application for a reference under Section 66(3). It was stated on his behalf that his application before this High Court under Section 66(3) is independent of his remedy which he pursued before the Income-tax Commissioner and therefore the mere fact that he applied to the Income-tax Commissioner for withdrawing the application made before him and for refund of the money did not disentitle him to pursue his application. Section 66(2), Income-tax Act, before the amendment of 1939 permits any assessee who is dissatisfied with the order passed by the income-tax authorities against him to apply to the Commissioner of Income-tax requesting him to refer to the High Court any question of law arising out of such order. This application has to be accompanied by a fee of Rs. 100. The Commissioner may thereupon refer the question raised or reject the application on the ground that it is barred by time or otherwise incompetent, or he may refuse to state the case. When the Commissioner refuses to state the case or rejects the application the assessee may within 30 days from the date on which he receives notice of the order passed by the Commissioner withdraw his application, and if he does so the fee paid is refunded. Section 66(3) lays down: If, on any application being made under Sub-section (2), the Commissioner refuses to state the ease on the ground that no question of law arises, the assessee may within six months from the date on which he is served with notice of the refusal apply to the High Court, and the High Court, if it is not satisfied of the correctness of the Commissioner's decision, may require the Commissioner to state the case and to refer it, and on receipt of any such requisition, the Commissioner shall state and refer the case accordingly.