M. Hidayatullah, C.J.
1. This is an application under section 66(2) of the Indian Income-tax Act, 1922, for calling upon the Income-tax Department to state a case.
2. The facts of the case are as follows: The applicant was assessed under section 25(3) of the Bhopal Income-tax Act of 1936 (Act VIII of 1936) on a total income of Rs. 2,365/- by an order D/-20-7-1946. After the Indian Income-tax Act was applied to Bhopal, the case was reopened tinder section 34 of the Income-tax Act, inasmuch as it was found that the applicant had encashed 57 high denomination notes of Rs. 1,000/- each on 16-1-1946. A notice was issued to him on 28-3-1951 under section 40 of the Bhopal Income-tax Act, 1936, but in the order sheet section 34 of the Indian Income-tax Act was mentioned and Forms I. T. 90 and 11 were ordered to be used.
3. When the applicant filed his return it was not accepted and notices under Sections 23(2) and 22(4) of the Indian Income-tax Act were ordered to be issued. The case went on and the total income of Rs. 59,365/- was assessed.
4. The applicant went up in appeal before the Appellate Assistant Commissioner, Jabalpur. The appeal failed. The applicant then filed a second appeal before the Income-tax Appellate Tribunal, Bombay. The Tribunal dismissed the appeal on the ground that the supplemental proceedings were under the Bhopal Income-tax Act and that under that Act no second appeal lay. The Tribunal also held that there was no merit in the appeal.
5. The applicant then filed an application under section 66(1) of the Indian Income-tax Act to refer the case to the High Court, but the Tribunal held that since the proceedings were not under the Indian Income-tax Act, the provisions of Section 66(1) of the Indian Income-tax Act did not apply to this case and further that no question of law was involved.
6. The present application was, therefore, filed to require the Tribunal to state a case. The applicant has suggested a large number of questions. The Department, however, challenges our jurisdiction to entertain the present petition under section 66(2) of the Income-tax Act.
7. The jurisdiction of this Court depends upon the applicability of the Indian Income-tax Act. The Tribunal has decided that it did not apply to the present case and that the second appeal before the Tribunal was not competent. In our opinion, our jurisdiction depends on whether these two questions were correctly decided. That in its turn depends on whether the Indian Income-tax Act applied to the proceedings and the rights of appeal under it were available or not.
8. Now, for us to give a decision on these matters directly will favour of an exercise of appellate jurisdiction and not advisory and consultative, which is the only jurisdiction conferred on the High Court. There can be no doubt that an appeal purporting to be under the Indian Income-tax Act was filed and also an application was made under the same Act under section 66(1). Those were rejected on the ground that the assessment was not under the Indian Income-tax Act. This view may be right or it may be wrong, but a question does arise under the Indian Income-tax Act for determination, read with the other Acts pertinent thereto.
We can only decide that question under the advisory and consultative jurisdiction by asking, for a statement of the case and then pronounce on our jurisdiction as well. But to pronounce onour jurisdiction is to place the cart before the horse. We must therefore call upon the Tribunal to state the case arising out of its order. In doing so we act on the principle that the Tribunal cannot make its decision on jurisdiction final it it is called upon to state a case questioning that jurisdiction and ought to state a case, assuming that a different view of the law is possible.
If we find that the Tribunal was correct, wecan endorse its view and reject the application before us also as incompetent; but if we find that the Tribunal had wrongly decided upon its jurisdiction, then we can answer the questions posed and send our opinion for the guidance of the Tribunal. To do otherwise may leave nothing for reference to this Court, for the question will have been- answered and the exercise of jurisdiction by us will be appellate and not consultative. We accordingly require the Tribunal to state a case particularly with reference to the following questions:
(1) Were the proceedings taken against the assessee by the Income-tax Officer, Bhopal, under the Bhopal Income-tax Act or under the Indian Income-tax Act?
(2) Was a second appeal competent before the Tribunal?
9. The costs of this application shall abide the result.