1. In these interlocutory applications, made in the above mentioned income-tax referred cases, a common question of law is raised, viz., whether a successfully assessee to whom costs are awarded by the court is entitled to get the fee of Rs. 100 deposited by him before the Appellate Tribunal, under section 66(1) of the Indian Income-tax Act, 1922 (to be hereinafter referred to as the 'Act').
2. I. T. R. C. No. 13 of 1962 is a reference under section 66(2) of the 'Act'. I. T. R. Cs. Nos. 17 of 1962 and 4 of 1963 are references under section 66(1) of the 'Act'. In all these cases, the court answered the question referred in favour of the assessee and ordered the department to pay the costs of the assessee. The advocate's fee was fixed at Rs. 250. While preparing the bill of costs, the Registrar had not included therein the sum of Rs. 100 paid by the assessee under section 66(1). Hence, these applications have been made under section 152, Civil Procedure Code, to correct the errors said to have been committed by the Registrar.
3. The question that arises for decision is whether the fee of Rs. 100 paid to the Appellate Tribunal under section 66(1) can be considered as costs incurred in the references in question. To decide this question it is necessary to refer to sub-sections (1) and (2) of section 66, which read :
'66. (1) Within sixty days of the date upon which he (assessee) is served with notice of an order under sub-section (4) of section 33 the assessee or the Commissioner may, by application in the prescribed form, accompanied where application is made by the assessee by a free of one hundred rupees, require the Appellate Tribunal to refer to the High Court any question of law arising out of such order, and the Appellate Tribunal shall within ninety days of the receipt of such application draw up a statement of the case and refer it to the High Court :
Provided that if, in the exercise of its powers under sub-section (2), the Appellate Tribunal refuses to state a case which it has been required by the assessee to state, the assessee may, within thirty days from the date on which he receives notice of the refusal to state the case, withdraw his application and, if he does so, the fee paid shall be refunded. (2) If on any application being made under sub-section (1) the Appellate Tribunal refuses to state the case on the ground that no question of law arises, the assessee or the Commissioner, as the case may be, 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 may, if it is not satisfied of the correctness of the decision of the Appellate Tribunal, require the Appellate Tribunal to state the case and to refer it, and on receipt of any such requisition the Appellate Tribunal shall state the case and refer it accordingly.'
4. One other provision of law necessary to be noticed is sub-section (6) of section 66, which says :
'66. (6) Where a reference is made to the High Court, the costs shall be in the discretion of the court.'
5. The High Court's jurisdiction under section 66 is an advisory jurisdiction. It merely answers the questions of law submitted to it by the Appellate Tribunal. Hence, the necessary proceedings will have to be commenced before the Appellate Tribunal. The proceedings commenced before the Appellate Tribunal are continued before the High Court. Proceedings under section 66 are not originated in the High Court. They have their beginning before the Appellate Tribunal, but they are continued and concluded before the High Court. The entire proceeding is one proceeding. Prima facie, the costs incurred in that proceeding are within the discretion of the High Court. If the High Court decides that the successful assessee is entitled to costs, that means that he is not only entitled to the costs incurred by him in the High Court (including the advocate's fee) but also the fee of Rs. 100 paid by him under section 66(1) of the 'Act'.
6. Our view in this regard is supported by numerous decisions. In Commissioner of Income-tax v. J. I. Milne a Bench of the Rangoon High Court held that the fee of Rs. 100 which must accompany an application for reference under section 66(2) forms part of the costs of, and incidental to, the reference, which the court in its discretion may award in a proper case to the assessee. In Commissioner of Income-tax v. Gopal Vaijnath Manohar, dealing with this very question, this is what Beaumont C.J., speaking for the court, observed :
'In my opinion, the fee is part of the assessee's costs of the reference, and, consequently, our order directing the Commissioner to pay the costs covers the return of the fee as being part of the out-of-pocket expenses of the assessee.'
7. The Sind Judicial Commissioner's Court in Commissioner of Income-tax v. Central Popular Assurance Co. Ltd. held that, if the assessee is successfully, he would ordinarily be entitled to his costs including the fee of Rs. 100 deposited by him under section 66(1). The Lahore High Court took the same view in Mohammad Mohsin Maula Baksh v. Commissioner of Income-tax. Therein it was laid down that the preliminary deposit of Rs. 100 made by an assessee under section 66(1) of the 'Act' forms part of the costs incurred in relation to the reference and where an assessee is a awarded costs of the reference he is entitled to a refund of his deposit. The Madras High Court in V. Ramaswamy Iyengar v. Commissioner of Income-tax also held that the assessee is entitled to the refund of Rs. 100 paid by him as fee. But, it thought that the proper order to be made was to direct the Tribunal to refund that amount. That order was made by the court solely with a view to continue the practice sanctioned by precedent in Chidambaram Chettiar v. Commissioner of Income-tax and Raghavalu Naidu & Sons v. Commissioner of Income-tax
8. Unlike the Madras High Court, this court is not bound by any practice similar to the one prevailing in the Madras High Court. Both in principle and on authority, it is appropriate to include the fee of Rs. 100 in the costs ordered to be paid by the department. In the references before us, the Tribunal is not a party. Therefore, we doubt whether we can make any order against it. Moreover, all costs including the court-fee or any other fee paid by the successful party will have to be paid by the unsuccessful party to the successful party. The Tribunal, which gave a wrong decision, cannot be directed to refund the fee paid in accordance with law. The deposit of Rs. 100 made is not a mere deposit or security for costs, which may be incurred, but a 'fee' in the ordinary sense of that word : see Central Popular Assurance Co. Ltd.'s case Hence that fee is a component part of the costs incurred by the successful assessee.
9. For the reasons mentioned above, we allow these interlocutory applications and direct the Registrar to include in the bill of costs, in each case, the sum of Rs. 100 deposited by the assessee concerned under section 66(1) of the 'Act'. We make no order as to costs in these interlocutory applications.