GURMUKH RAI Vs. SECRETARY OF STATE

JUDGEMENT

(1.) This is an application for leave to appeal to His Majesty in Council from an order of the High Court dated 8 December 1933, dismissing an application filed by the applicant under Section 66, Sub-section (3), Income-tax Act, praying that the Commissioner be required to state the case and to refer it to the High Court. It appears that the applicant had applied to the Commissioner of Income-tax to review the proceedings under Section 33, Income-tax Act, and praying that if he did not feel inclined to interfere with the previous order he might refer to the High Court the question of law raised in the application; but the Commissioner passed an order dated 23 January 1933 refusing to interfere and declined to refer the case.

(2.) A preliminary objection is taken that an appeal does not at all lie. We are of opinion that this objection has force.

(3.) Under Clause 30 of the Letters Patent of this High Court a right of appeal was given to the Privy Council in certain circumstances. But Clause 35 expressly provided that the provisions of the Letters Patent are subject to the legislative powers of the Governor-General in Council. The provisions of Clause 30 must therefore be deemed to have been superseded by Similar provisions contained in Secs.109 and 110, Civil P.C. Under Section 109, an appeal lies from any decree or final order passed on appeal from any decree or final order passed in the exercise of original civil jurisdiction, and from any decree or order when certified to be a fit case for appeal subject to the condition laid down in Section 110. It was therefore necessary under the Code that there must be either a decree or final order or a decree or order certified to have been passed in a case fit for appeal.