1. This is a petition Under Section 45, Specific Relief Act, by a company called the Indian Life Assurance Company which is a company registered under the Indian Companies Act and having its registered office at Karachi. The petitioners were assessed to Income-tax for the year 1928-29 by the Income-tax Officer at Karachi, and in that assessment the petitioners were allowed a deduction of Rs. 74,000 odd in respect of depreciation of immovable properties Owned by the petitioners and they paid their Income-tax less that, deduction.
2. The respondent who is the Commissioner of Income-tax for the Presidency of Bombay including the province of Sind disagreed with the deduction which the petitioners had been allowed and acting under the power conferred upon him by Section 33, Income-tax Act, he disallowed the petitioners' claim for that deduction and I suppose made a fresh assessment upon them. The petitioners were dissatisfied with the order of the Commissioner and they requested him testate a case for the opinion of this Court. The Commissioner refused to do that as he thought that the matter was quit clear and thereupon the petitioners presented this petition in which they ask for an order requiring the respondent to draw up a statement of the petitioners' case and to refer it with his opinion thereon to this Court.
3. The Advocate General for the respondent has taken a preliminary objection that this Court would have no juristic to deal with the case if stated.
4. Mr. Coltman for the petitioners argues that even if that is so we can Under Section. 45, Specific Relief Act, require the Commissioner of Income-tax, Bombay, who is a public officer resident in Bombay to state a case. But in my opinion if we are satisfied that the case when stated would have to be referred to the Court of the Judicial Commissioner in Sind for decision it would not be right for us in our discretion to make an order Under Section 45, Specific Relief Act, even if we have power to do so. It is necessary therefore to determine whether this Court would have jurisdiction to hear the case if stated. Section 66, Income-tax Act, provides;
(1) If in the course of any assessment under this Act or any proceeding in connexion therewith other then a proceeding under Chap. 8, a question of law arises the Commissioner may either on his own motion or on reference from any Income-tax authority subordinate to him draw up a statement of the case and refer it with his own opinion thereon to the High Court.
6. The Advocate General says that the 'High Court' in that section for the purpose of the present case is the Court of the Judicial Commissioner in Sind and not the High Court of Bombay. The expression 'High Court' is definedin Section 3 (24), General Clauses Act, in these terms:
'High Court' used with reference to civil proceedings, shall mean the highest civil Court of appeal in the part of British India in which the Act or Regulation containing the expression operates.
7. Under Section 1, Sind Courts Act, Bombay Act 12 of 1866, it is provided:
There shall be for the Province of Sind a Court of the Judicial Commissioner of Sind (hereinafter called the Court of the Judicial Commissioner) which shall be the highest Court of appeal in civil and criminal matters in the said province and which shall be the District Court and Court of Karachi of Session and then by Section 1, Government of India Act 5 of 1872, it is provided:
The High Court of Bombay has not and shall be deemed never to have had jurisdiction over the Province of Sind.
8. So that within the Province of Sind, the Court of the Judicial Commissioner is clearly the High Court. On the other hand within the whole of the Presidency of Bombay, which of course for certain purposes includes the province of Sind, the High Court of Bombay is the High Court and the question is which Court is the High Court for the purpose of Section 66, Income-tax Act, and it seems to me that in determining that question what we have to see is in which place does the Income-tax Act, for the purpose of this proceeding operate. The Act Under Section 1 operates in the whole of British India, but it seams to mo that for the purpose of the present provision it operates in Sind and not in Bombay. The assessment was originally made in Sind, the assesses has its registered office in Sind. No doubt the assessment was actually altered by the Commissioner at his office in Bombay, but the altered assessment operates in Sind, and the money will have s to be paid or collected in Sind.
9. It seems to me therefore that for the, purpose of the Income-tax Act this assessment operates in Sind and that therefore the Court of the Judicial, Commissioner in Sind is the High Court within the meaning of Section 66(1). Our decision on this point is in accordance with a decision which has already been given on the same point by the Court of the Judicial Commissioner at Sind in Misc. Appln. No. 23 of 1929: Firm of Bulchand Keshavdas v. The Commissioner of Income-tax, Bombay.
10. In my judgment therefore this petition must be refused with costs.
11. I agree.