1. In this case notice was issued to the Income Tax Commissioner to show cause why he should not state a case. The order was made ex parte on the application of the applicant. In future when the new rule9 come into force the applicant will have to establish a good ground on a point of law before the Court to whom he applies, before notice is issued to the Income-Tax Commissioner at all. The result of the procedure was that the Commissioner had to show cause on the merits and to instruct the Government-Advocate for that purpose, and the hearing was really such as would have taken place if the Commissioner had been required to state a case. In fact, the matter was gone into as though a case had been stated in order to ascertain whether there was a point on which a case could have been stated. In the result the application was dismissed on the ground that it was impossible to frame a question of law on which a case could be stated and on the application of the Government-Advocate the Court hearing the matter directed the applicant to pay the costs of the application including the fees certified by the Government-Advocate. The Court did that after hearing both parties for reasons which it considered adequate at the time.
2. An application is now made to us to reduce the amount after issuing notice to the Government-Advocate on a sort of re-hearing. We cannot do that. By Section 66(6) costs are in the discretion of the Court. The Court having exercised its discretion is functus officio and cannot re-open the matter. All questions relating to costs and all submissions in which costs are involved must be argued and decided at the time of the hearing and before a final order is drawn up.
3. The learned Counsel suggested that there was a special ground for exercising the discretion, because under Section 66(2) his client had been compelled by the Act to deposit another sum of Rs100 at an earlier stage when he required the Commissioner to refer the question of law to the High Court. The High Court has no jurisdiction, of course, over this sum of Rs. 100 which the Commissioner has received. He has, no doubt, full power to deal with it in his own way and in accordance with the rules of his office. Any application in misericor diam must be made to the Income-Tax Commissioner if any rebate of this sum is desired. No doubt, in the exercise of its discretion under Section 66(6) the High Court could take into account the fact that the assessee had had to pay Rs. 100 to the Income-Tax Commissioner, but in the great majority of cases it would appear to be quite irrelevant to the question of the costs of disposing of the matter by the High Court as it relates to something antecedent and the effect of taking it into account would really be indirectly to reduce the fee which the Government-Advocate may have certified or which is really payable to him under the Act and Rules. We see no reason to interfere and dismiss the application.