WAZIR, C.J. - The Minister-in-charge, Income-tax Department, has made a reference to the High Court under section 66(1) of the Income-tax Act and has invited the opinion of the Court on the following question : "Whether on the true construction of the partnership deed dated the 2nd Phagan, 2006, and in the circumstances and facts of the case the Income-tax Commissioner was right in law in allowing registration and renewal of registration under section 26A of the Income-tax Act, 2007." Messrs. Pran Nath Om Prakash filed their return for S. 2006-7 and 2007-8 before the Income-tax Officer, Central Circle. An application was made for registration of the firm under section 26A and for renewal of the registration. The Income-tax Officer refused to register the firm on several grounds enumerated in his order. The assessee filed an appeal before the appellate officer who confirmed the order of the Income-tax Officer. The assessee further appealed the Minister-in-change who transferred the appeal for disposal to a Judge of this Court designated as Income-tax Commissioner under section 33(7) of the Income-tax Act. The learned Income-tax Commissioner over set the order of the appellate officer and directed the registration of the firm under section 26A. The Minister-in charge has drawn upon the statement of the case and has referred the question of law mentioned above for consideration of this Court under section 66(1) A preliminary objection was taken by the counsel for the assessee respondent that the reference made by the Minister-in-charge is not competent and could not be entertained by this Court. His argument is that under section 33, clauses (1) to (6) the Minister-in-charge is competent to hear an appeal from the order passed by an appellate officer under section 31 of the Act. The order of the Minister-in-charge is competent to hear an appeal from the order passed by an appellate officer under section 31 of the Act. The order of the Minister-in-charge is final save as provided in section 66. The Minister-in-charge can transferable the appeal to the Income-tax commissioner he was not competent to deal with that appeal any further.
In other words he could not make any reference under section 66(1) of the Act as he has done. It was only the Income-tax Commissioner to refer the case to the High Court under section 66(2) but the Minister-in-charge could not make any reference in this case. On the other side the counsel for the Department has argued that in section 66 the word "Minister-in-charge" is mentioned and the words "Income-tax Commissioner" do not find any place in that section. Therefore the Income-tax Commissioner could not make any reference under section 66 even before he passed an order nor could an assessee move the Income-tax Commissioner to make a reference to the High Court under section 66. He contends that it was the Minister-in-charge alone whose name finds place in section 66 who could refer the case.
We have very carefully considered the arguments addressed to us by the counsel for the parties. The Minister-in-charge of the is defined in section 2 clause (8A) of the Act as Minister-in-charge of the Income-tax Department or any other authority appointed by the Government to exercise the functions of the Minister-in-charge." Section 33(7) provides that the Minister-in-charge may transfer any appeal pending before him for decision by a Judge of the High Court designated by the Government as Income-tax Commissioner whose decision shall, subject to an order under section 66, be final. Sub-section (8) provides that for the disposal of the appeal transferred under sub-section (7) the Judge of the High Court shall exercise all the powers of the Minister-in-charge" used in section 66(i) therefore clearly includes the Judge of the High Court designated as Income-tax Commissioner in respect of the appeals transferred to him under section 33(7). The words "subject to an order under section 66 the decision of the Income-tax Commissioner shall be final" used in section 33(7) clearly mean that the order of the Income-tax Commissioner will be final subject to any order that may be made by the High Court on a reference made by the commissioner under section 66(2) at the request of the assessee. The Minister-in-charge including the Income-tax Commissioner may of course on his own make a reference to the High Court under section 66(1) in regard to any question of law before passing any order himself. If we were to interpret the term Minister-in-charge to mean only the Minister-in-charge of the Department and not the Income-tax Commissioner who exercises the powers of the Minister-in-charge for the purpose of the appeal transferred to him, then the provisions of section 66 of the Income-tax Act would give rise to anomalous results which could not be the intention of the legislature. In that event it will only be the Minister-in-charge who could make a reference under section 66(1) in the course of assessment or any proceeding in connection therewith. The assessee also will have a right to require the Minister-in-charge to make a reference if he is not satisfied with the order passes by the Minister; but the assessees right to require the Commissioner to make a reference will be totally taken away if the words "Income-tax Commissioner" are not taken to come within the definition of Minister-in-charge as used in section 66. In other words the Minister-in-charge of the Department will have a right to approach the High Court in case he is not satisfied with the order passed by the Income-tax Commissioner whereas the assessee, if adversely affected by the order of the Commissioner of Income-tax, is debarred from any further remedy. This, to our mind, could not be the intention of the legislature to give remedy to the Income-tax Department and deprive the assessee of the remedy if he has any grievance against the order of the Income-tax, Department and deprive the assessee of the remedy if he has any grievance against the order of the Income-tax Commissioner. In our opinion the term "Minister-in-charge" therefore used in section 66 is wide enough and includes the Income-tax Commissioner to whom the appeal is transferred and who is authorised to exercise the powers of the Minister-in-charge.
The definition of "Minister-in-charge" given in the Act also supports our view as in that definition the Minister-in-charge includes an authority appointed by the Government to exercise the functions of the Minister-in-charge.
As the appeal was transferred to the Income-tax Commissioner it was he who could make a reference to the High Court before he disposed of the appeal, or the assessee apter the order was passed by the Commissioner could move him to make a reference under section 66(2). The Minister-in-charge was not competent to invoke the provisions of section 66(1) after he had transferred the case to the Judge of this Court designated as Income-tax Commissioner under section 33, clause (7). We have no doubt in our mind that this reference is not competent and it is therefore dismissed.
In the circumstances of the case we do not propose to make any order as to costs.