This is an application under Section 66 (3) of the Indian Income-tax Act praying that the Commissioner of Income-tax be required to state a case to this Court.
It appears that for the assessment year 1933-34 the applicants were assessed to tax on an income of Rs. 7,414. We are informed that there was an appeal to the Assistant Commissioner and that the assessment, was reduced. On July 17,1934, a notice was served upon the applicants under Section 34 of the Act requiring them to submit a fresh return in respect to escaped income; and in reply the applicants filed a return on October 12, 934, shoeing the same income as they has shown in their original return, namely, Rs. 5,44. Ulitemately on January 8, 1936, the Income-tax Officer re-assessed the applicants upon an income of Rs. 47,707 under Section 23 (4) and he also called upon them to show cause why a penalty should not be imposed upon them under the provision of Section 28 of the Act. On January 11, 1936, a notice was served s upon the applicants to pay income-tax amounting to Rs. 7,000 odd; and this was duly paid. On July 13,1936, a penalty of Rs. 1,000 was imposed upon the applicants under Section 28; and presumably this also was paid.
Therefore the applicants appealed both against the assessment and also against the imposition of a penalty; but on October 27, 1936, both appeals were dismissed by the Assistant Commissioner.
On February 3, 1937, the applicants applied to the Commissioner for review under SEction 33 and at the same time applied for a reference to this Court under SEction 66 (2) of the ACt. The 22nd June 1937 was fixed for the hearing of these application, but on that date the applicants agent applied to the Commissioner of Income-tax withdrawing the two applications which had been preferred under Section 66 (2). On June 22, 1937, the Commissioner declined to exercise his powers of review under Section 33. The matter rested here until July 3, 1937, on which date the applicants objected that there was no authority in the Act for withdrawing an application which had been preferred under Section 66 (2). This objection was rejected the Commissioner on July 23, 1937.
On November 1, 1937, the applicants moved the Commissioner to make a reference to this Court suo motu under Section 66 (1); but this application was rejected on November 13,1937.
On January 24,1938, the application under Section 66 (3) of the Act was preferred to this Court.
A preliminary objection is taken on behalf to the department that this application does not lie; and we are of opinion that the objection must be sustained. Section 66 (3) of the Act provides :
'If, on any application being made under sub-section (2) the Commissioner refuses to state the case on the ground that no question of law arises, the assessee may apply......'
Learned Counsel for the applicants admits that their application of July 3,1937, was nor dismissed by the Commissioner on the ground that no question of law arose; and since this is the only ground upon which an application lies under Section 66 (3) of the Act we are clearly of opinion that the application is incompetent,. We accordingly dismiss this application with costs.
The Advocate-General is entitled to a fee of Rs. 75.