John Beaumont, Kt., C.J.
1. This is a petition asking us to direct the learned Commissioner of Income-tax to state a case for the opinion of this Court-The petition is presented under the Specific Relief Act, 1877, and the Indian Income-tax Act, 1922. It is a case in which the learned Commissioner himself sent for the papers under Section 33 of the Act and set aside an order which had been made by the Assistant Commissioner in favour of the assessee, and the assessee desires to bring a question of law which arises before this Court. The contention of the Commissioner is that the Court has no jurisdiction to direct him to state a case. That question depends primarily on Section 66 of the Indian Income-tax Act, because, unless there is an obligation under that section on the Commissioner to state a case, it is clear that we cannot compel him to state a case under Section 45 of the Specific Relief Act. Sub-section (1) of Section 66 (so far as material) provides that if in the course of any assessment under the Act or any proceeding in connection therewith a question of law arises, the Commissioner may on his own motion draw up a statement of the case and refer it with his own opinion thereon to the High Court. The language of that subsection is clearly permissive. Then under Sub-section (2), where an order has been made under Section 31 or Section 32 the assessee may require the Commissioner to refer a question of law to the High Court, and under Sub-section (3) if the Commissioner refuses to state a case on the ground that no question of law arises, the assessee may apply to the High Court, and the High Court j may, if it thinks fit, require the Commissioner to state a case. But there is no express obligation upon the Commissioner to state a case on an border arising under Section 33, and this Court has no power to compel him to exercise his discretion in any particular manner. It is true that this seems to disclose a serious omission from the Income-tax Act, because it is open to the Commissioner in any case to send for the papers under Section 33 and make an order, and thereby deprive the assessee of his right to bring the matter before the Court under Sub-section (2) or Sub-section (3) of Section 66. It is said by Mr. Coltman on behalf of the petitioners that although there is no express obligation upon the Commissioner to state a case, the authorities show that such an obligation exists. He relies in the first place on the case of Alcock, Ashdown and Co. v. Chief Revenue-Authority Bombay (1923) L.R. 50 IndAp 227 : 25 Bom. L.R. 920 But that case was decided by the Privy Council on Section 51 of the Indian Income-tax Act of 1918, and that section is differently worded to Section 66 of the Act of 1922. The whole scheme as to reference to the Court has been re-drafted, and the Act of 1922 expressly deals with the cases in which the Court can require the Commissioner to state a case. In my opinion, therefore, it is useless to look at authorities on the former Act. Then the next case relied upon is the decision of the Madras High Court in Sheik Abdul Kader Marakayar and Co. In re. I.L.R. (1925) Mad. 725 That is an authority directly in favour of the petitioners. The Court did in that case hold that in cases coming under Section 33 of the Indian Income-tax Act the Commissioner is bound to state a case to the High Court if in the course of inquiry under that section any question of law arises in the case. It was held further that that being so, it was within the power of the High Court to require him to state a case under Section 45 of the Specific Relief Act. The Court purported to follow the Privy Council case to which I have referred, and relied also upon the unfortunate, consequences, to which I have alluded, which follow if the Commissioner is not bound to state a case in respect of an order under Section 33. But Courts have to construe an Act as they find it, and, if the language is not clear, it is for the legislature, and not for the Courts, to remedy an apparent defect. If that case stood alone we might have thought it right to follow it without expressing our own opinion upon the question on the ground that uniformity in the decisions of the High Courts on the Income-tax Act is desirable. But the case has been dissented from by the High Court of Rangoon in the case of V.E.A. Chettyar Firm v. The Commissioner of Income-tax I.L.R. (1929) Ran. 581 and in my opinion the decision of the High Court of Rangoon is to be preferred to the decision of the High Court of Madras. It seems to me that the language of Section 66 is clear, and that we cannot extract from it an obligation on the Commissioner to state a case dealt with under Section 33.
2. The Commissioner, in refusing to state a case, stated, in his letter of May 1, 1933, that a reference to the High Court under Section 66(1) can only be made in the course of any assessment or any proceeding in connection therewith and not after the case has been finally decided, and he express ed the view that the case having been decided nothing could now be done in the matter. With all respect to the learned Commissioner I think that the reason he has given for not stating the case cannot be supported. It is, I think, clear from the affidavit of the petitioners that a question of law does arise, and that that question arose in the course of the assessment proceedings ; that being so, I think the learned Commissioner has a discretion to state a case under Section 66(1), I will only say that if this Court had any discretion in the matter we should think it right to exercise it by directing the learned Commissioner to state a case. However in my view the Court has no discretion in the matter. We must, therefore, dismiss the petition.
3. Petition dismissed with costs as on the Original Side scale.
4. I agree. In my opinion the Madras decision in Sheik Abdul Kader Marakayar and Co. In re I.L.R. (1925) Mad. 725 was wrong. With all respect to the learned Judges who were parties to that judgment it seems to me impossible to hold that the Privy Council decision on which they relied can still apply to the new Section 66, Sub-section (1), of the Act of 1922. The legislature when that Act was framed must have had present to their minds the old Section 51 of the 1918 Act on which their Lordships of the Privy Council based their decision. But there was nothing in Section 51 which corresponds to the powers conferred upon the High Court in Sub-section (3) of Section 66, and, in my opinion, having regard to the fact that in the new Section 66 express powers are conferred upon the High Court in Sub-section (3) and no such powers are conferred under or in relation to Sub-section (1), it must be taken to have been the intention of the legislature not to empower the High Court to compel the Commissioner to state a case when he purported to act under Sub-section (1) of that section. I appreciate the difficulties which were pointed out by the learned Judges of the Madras High Court, namely, that it might be open to the Commissioner to call for the records under Section 33 and burke any further inquiry. That was pointed out also in the Rangoon decision, V.E.A. Chettyar Firm v. The Commissioner of Income-tax I.L.R. (1929) Ran. 581 But as the learned Judges said in that case, that is really a matter for the legislature. As the section stands, in my opinion, the decision of the Rangoon High Court is clearly right, and there is no power whatever in the High Court to order the Commissioner under Section 45 of the Specific Relief Act to state a case. It is not clearly incumbent upon him to do so under Section 66(1). On the contrary there is no provision in that behalf at all, but merely a discretionary power which is thereby vested in him. In my opinion, therefore, this petition must be dismissed.