Norman Macleod, Kt., C.J.
1. This is an appeal from the order of Mr. Justice Mulla discharging a rule nisi taken out by the petitioners calling upon the Commissioner of Income Tax, Bombay, to appear and show cause why he should not be ordered to refer the questions set out in Ex. F, and in para 8 of the petition, together with his opinion thereon to this Court for its decision. The petitioners are a joint stock company incorporated and registered in Bombay on June 16, 1920. They were required by the Collector of Income Tax to make a return of their income for assessment for the year 1921 -22. On October 27, 1921, the petitioners lodged accounts for the year ending June 30, 1921. Upon that the Collector issued notices of assessment for income tax and super tax for the year 1921-22, which were subsequently amended, and the amended notices were issued on January 3, 1922. The petitioners paid the income tax and the super-tax demanded in the notices on February 6, 1922. In October 1922 the petitioners alleged that they had discovered that the Income Tax Authorities had made a mistake in levying income tax and supertax on the basis of the accounts for the twelve months, ending June SO, l921. Accordingly in November 1922 they made a representation to the Senior Income-Tax Officer pointing out the mistake and claiming refund of the income tax already paid. The Senior Income Tax Officer replied by his letter of November 18, 1922, that the assessments to income tax and super tax levied against the company for 1922-23 was in order and needed no revision, and if they were dissatisfied they might appeal to the Assistant Commissioner of Income Tax, Bombay, against the same.
2. It will be seen that the Senior Income Tax Officer did not refer to the assessments for 1920-21 which was the assessment which the petitioners were complaining about in their letters to him.
3. The petitioners then applied to the Commissioner of Income Tax who gave his decision on June 19, 1923, as follows :-
The petitioners' attention is drawn to the fact that the assessment against the Jubilee Mills, Ltd., objected to in their petition dated March 23, 1923, was levied in the year 1921-22 under proviso to Section 19 of the Act, 1918. The notice of assessment was issued on December 8, 1921. The tax after some minor modification was paid by the Company on February 6, 1922. No appeal against the assessment was made as provided for by Section 21 (1) (2) of Act, 1918. The undersigned declines to take action under Section 51 of Act, 1918.
4. A further representation was made to the Commissioner of Income Tax to which he replied on July 24, 1923, declining to accede to the petitioners' request to make a reference to the High Court.
5. On February 8, 1924, the Commissioner, who had since received a letter from the petitioners of the 6th instant, which is not on the record, replied that it had been decided to make a reference to the High Court in the matter of the income tax and super tax assessment of the Jubilee Mills, Limited, for the year ended March 31, 1922, under Section 51 of the Indian Income Tax Act VII of 1918, and that the same would be made in due course.
6. Mr. Hartley, who was then Commissioner, seems to have gone on leave, and on April 29,1924, his successor, Mr. Vachha, replied to the petitioners' letter of February 6, that he declined to reconsider the order already passed in the case on June 19, 1923, which we have just referred to.
7. The petitioners then took out this rule. Mr. Justice Mulla, relying on the, decision of this Court in In re Panalal Ganeshdas I.L.R.(1921) 46 Bom. 707 : 23 Bom. L.R. held that the application would not come within Section 51 of the Act of 1918, as it was not made in the course of any assessment, under the Act or any proceeding in connection therewith other than a proceeding under Chapter VII. We think that that decision is correct. When the assessment has been determined by the Collector, he shall serve on the asses see a notice of demand in the prescribed form as provided by Section 20 of the Act. If the assessee objects, he may apply by petition to the Commissioner for relief against any order of the Collector in respect of such assessment, which petition shall ordinarily be presented within thirty days of receipt of notice of demand. If the petition against the assessment is not presented, then it must he taken that the assessment is final, and no application can be made under Section 51.
8. The petitioners then contend that the application to the Collector was made under Section 26 of the Act, under which the Collector may, at any time within one year from the date of any demand made upon the assessee, rectify any mistake in connection therewith which has been brought to his notice by such assessee, and make a refund to such assessee in respect thereof, That section only relates to a mistake in the demand of, any assessment, and cannot enable the discontented assessee, who has paid the amount demanded by him, to reopen the question of the assessment. The section provides for the rectification of mistakes caused by the demand not corresponding to the assessment, and does not provide for an appeal to the Commissioner from the order of the Collector under Section 26 either rectifying the mistake or refusing to rectify a mistake on an application made by the assessee. Therefore, in this case it was not competent to the petitioners to apply to the Commissioner of Income Tax to refer the question which had arisen to the High Court, on the ground that it referred to the interpretation of certain of the provisions of the Act, or of some rule thereunder.
9. The appeal must be dismissed with costs.