1. This is an application for leave to appeal to the Supreme Court against an order of this Court passed upon a reference made under section 66(2) of the Income-tax Act. Leave to appeal is sought under the provisions of Article 133 of the Constitution. Under this Article, an appeal Jies to the Supreme Court 'from any judgment, decree or final order in a civil proceeding of a High Court.' Mr. Sikri, who appears on behalf of the Commissioner of Income-tax, contends that the order under appeal is neither a judgment, a decree nor a final order and that therefore leave cannot be granted under the provisions of Article 133.
He has placed before us a recent decision of the Supreme Court in 'PREM CHAND v. STATE OF BIHAR', AIR 1951 S C 14. In that case the point under consideration was whether an appeal lay to the Supreme Court from an order of the High Court of Patna declining to call upon the Board of Revenue to state a case under section 21(3) of the Bihar Sales Tax Act.
Now section 21(3) is analogous in terms to section 66 of the Income-tax Act. The judgment contains a reference to a decision of the Patna High Court in 'HARIHAR GIR v. COMMR. OF INCOME-TAX, BIHAR AND ORISSA', AIR 1941 Pat 225. Their Lordships said:
'It was held by a Special Bench of the Patna High Court that no appeal lay to His Majesty in Council under Clause 31 of the Letters Patent of the Patna High Court, from an order of the High Court dismissing an appli-cation under section 66(3), Income-tax Act, (a provision similar to section 21 of the Act before us) to direct the Commissioner of Income-tax to state a case. In that case, the whole law on the subject has been dearly and exhaustively dealt with, and it has been pointed out that the view -taken by the Full Bench of the Lahore High Court in the case cited by the appellant 'FEROZE SHAH, v. COMMR. OF INCOME-TAX', AIR 1931 Lah 138, was not supported by several other High Courts and that the Privy Council also, when the matter came before it, refrained from expressing any opinion as to its correctness. In our opinion, the view expressed in the Patna case is correct.'
These remarks of their Lordships of the Supreme Court clearly indicate that no appeal against an order passed upon a reference or an order refusing a reference is competent. It is to be observed that in clause 31 of the Letters Patent of the Patna High Court the words used are 'final judgment, decree or order' which are the words used in Article 133 of the Constitution, It is, therefore, clear that the order from which an appeal is contemplated is not a judgment, decree or final order within the meaning of Article 133 and that therefore no appeal from this order is, competent. We accordingly refuse leave to appeal and dismiss the petition with costs. This order covers the connected case Civil Miscellaneous No. 369-C of 1951 also. Cost of both the cases are assessed at Rs. 50/-.