Kumara Pillai, J.
1. Those are petitions to compel a reference to this court under the Cochin Income-Tax Act. The petitioner in O. P. Nos. 634, 635, 636 and 639 of 1958 is one Parvathi Sankaran and the prayers in them are in respect of the assessments on her for the years 1121 1124, 1123 and 1122 respectively. The petitioners in O. P. Nos. 637, 638 and 640 are the legal representatives of one Mundan, and the prayers in them are in respect of the assessment for the years 1123, 1121 and 1124 respectively.
2. Parvathi Sankaran and Mundan had been assessed to income-tax under the Cochin Income-tax Act for the relevant years. There were appeals from the assessments, and on the dismissal of those appeals, revision petitions were filed before the Commissioner of Income-tax. The Commissioner of Income-tax dismissed the revision petitions, and thereupon applications for reference to this Court were made. Those applications were dismissed by the Commissioner on the short ground that, as the revisional orders passed under Section 43 of the Cochin Income-tax Act had neither enhanced the assessments nor were otherwise prejudicial to the applicants, no reference could be made. In these original petitions the contention of assessees counsel is that although the revisional orders have not enhanced the assessments, the Commissioner should have made the reference as prayed for since the orders are pre-judicial to the assessees inasmuch as the reasons given by the Commissioner for the dismissal of the revision petitions are wrong.
3. Revisional powers are conferred on the Commissioner of Income-tax by Section 43 of the Cochin Income-tax Act. It is expressly provided in that section that an order by the Commissioner declining to interfere shall he deemed not to be an order prejudicial to the assessee; and under Section 109 (2) of the Cochin Income-tax Act, when an order under Section 43 is passed, the assessee has the right to ask for and obtain a reference to the High Court only in cases where the assessment has been enhanced or the Commissioner's order is otherwise prejudicial to him. It is clear from the proviso to Section 43 that, so long as the Commissioner has declined to interfere and has only dismissed the application for revision, his order cannot be said to be prejudicial to the assessees, however wrong may be the reasons given by him for the dismissal. Section 33A of the Indian Income-tax Act, which confers on the Commissioner powers of revision, contains a similar provision. One of the proviso to that section reads:
'Provided further that an order by the Commissioner declining to interfere shall be deemed not to be an order prejudicial to the assessee.'
In the comments on this proviso in Kanga's book On Income-tax, 1958 Edition page 687, it is said:
'The .....decision of the Privy Council inCommissioner of Income-tax West Punjab, North West Frontier and Delhi Provinces Lahore v. The Tribune Trust Lahore is a clear authority for the proposition that an order made by the Commissioner under this section can be said to be prejudicial to the assessee only when he is, as the result of it, in a different and worse position than that in which he was placed by the order under review. If the order passed in revision under this section does not worsen the position of the assessee, for instance, where the Commissioner merely rejects the assessee's appli-cation for relief, the order cannot be said to be prejudicial to the assessee.'
What Their Lordships have said in is:
'It appears to them that an order made by the Commissioner under Section 33 can only be said to be prejudicial to the assessee when he is, as a result of it, in a different and worse position than that in which he was placed by the order under review. If the assessee has a complaint against any assessment or order made by a subordinate officer, lie has the appropriate and specific remedy which the Act provides. The Commissioner may act under Section 33 with or without the invitation of the assessee; if he does so without invitation, it is clear that it he does nothing to worsen the position of the assessee, the latter can acquire no right; the review may be a purely departmental matter of which the assessee knows nothing. If, on the other hand, the Commissioner acts at the invitation of the assessee and again does nothing to worsen his position, mere is no justification for giving him a new right of appeal. He has a specific right of appeal against the assessment or order of the subordinate officer, which is subject to its own time-limit. That he cannot enlarge by taking a course which is on his part purely voluntary.'
4. It was contended by the assessees' counsel before us that, when the Commissioner dismisses a petition for revision of an order which itself was prejudicial to the assessee, the Commissioner's order dismissing the revision petition would also be prejudicial to the assessee and that the assessee has therefore the right in such cases to ask for and obain a reference to the High Court under Section 109(2) of the Cochin Income-tax Act; and in support of this contention the relied upon the decision of a Full Bench of five Judges of the Madras High Court in Sreerarmulu Chetty v. Income-tax Commissioner Madras, AIR 1939 Mad 709 which overruled an earlier decision of a Full Bench of three Judges in Venkatachalam Chettiar v. Commissioner or Income-tax Madras ILR 58 Mad 367: AIR 1935 Mad 379, Leach, C. J., said in that case:
'All that it (i. e. Section 66(2) of the Indian Income-tax Act corresponding to Section 109(2) of the Cochin Income-tax Act) contemplates is a prejudicial order, it seems to me that if an order of an Income-tax officer is prejudicial an order which confirms it or rejects an application asking that it be revised is also prejudical. It could not be said that a decree of an appellate court dismissing an appeal from a court of first instance is not pre-judical to the appellant. It is just as prejudicial as the original decree. There is no difference in this respect between the dismissal of an appeal and the dismissal of an application for revision when the law permits such an application to be made. . . . . The answer that I would give to the question referred is that ILR 58 Mad 367: AIR 1935 Mad 379 was wrongly decided and that an order which dismissed an application asking for the revision of a prejudical order must be deemed to he prejudical within the meaning of Section 66(2)'.
The reasoning of the learned Chief Justice is met completely by the extract we have given above from the judgment of the Privy Council in , and after the said Privy Council decision the Madras case, namely, AIR 1939 Mad 709, can no longer hold good.
5. After referring to the Privy Council case, Kanga says in the foot-notes at page 687 of his Book' on Income-tax (1958 Edn.):
'The decisions to the contrary in Ram Datta Sita Ram of Basti, In re : 15ITR61(All) ,Rama Chandra Mardaraja Deo v. Collector of Agricultural Income-tax : 22ITR220(Orissa) and some other cases cited therein are, it is submitted, incorrect'.
Statutory effect has been given to the viewwhich the Privy Council took in by the proviso to Sub-section (2) of Section 33A of the Indian Income-tax Act, that an order by the Commissioner declining to interfere shall not be deemed to be an order prejuclical to the assessee.
6. Section 43 of the Cochin Income-tax Act also contains the same proviso, and in view of that proviso no order of the Commissioner dismissing a revision petition filed before him can be said to be prejudicial to the assessee. Since the right of the assessee to obtain a reference, when the Commissioner has passed an order in revision, is confined by Section 109(2) of the Cochin Income-tax Act only to cases where the assessment has been enhanced lay the Commissioner or the Commissioner's order is otherwise prejudicial to him, it follows, as a result of the proviso to Section 43 of the Cochin Act, that when the Commissioner has dismissed the application for revision the assessee has no right to obtain a reference.
7. We accordingly hold that the Commissionerwas right in these cases in rejecting the applicationsfor reference and dismiss these original petitions withcosts, advocate's fee Rs. 100/ (one hundred) in eachof them.