1. This is a petition under Section 66(3), Income-tax Act, as amended. The petitioner applied to the Income-tax Officer for a refund Of Income-tax under Section 48 of the Act. This application was refused. The petitioner then got the Commissioner of Income-tax to take the matter up in review under Section 33 and in review the Commissioner refused to interfere with the order of refusal of the Income-tax Officer. It is common ground that the order made by the Commissioner was one under Section 33. The petitioner then required the Commissioner of Income-tax to refer the matter which he suggested was a question of law to the High Court under Section 66(2) of the Income-tax Act. The Commissioner took the view that Application to him under Section 66(2) was incompetent because his order under Rule 33 was not one enhancing the assessment or otherwise prejudicial to the applicant (the assessee). Section 66(2) which contains an amendment affecting this question reads as follows:
Within 60 days of the data on which he is served with notice of an order under Section 31 or B. 32 or of an order under Section 33 enhancing an assessment or otherwise prejudicial to him.. the assessee in respect of whom the order or decision was passed may by application. require the Commissioner to refer to the High Court any question of law arising out of such order....
2. The view taken by the Commissioner ,is that his order is not one which comes within the words 'otherwise prejudicial to him (the assessee).' With that view we entirely agree. What Section 33 clearly contemplates is an order made by the Commissioner which alters the position of an assessee or an applicant to that person's prejudice. In this particular case, his position had been prejudiced already by the refusal, of the Income-tax Officer to grant him the refund which he required. The Commissioner's order did did no more than leave him in that (position and, it is quite clear to us, was not an order which was prejudicial to (the petitioner in the sense intended, namely, that his position at that time, i.e. the date of the Commissioner's order, was altered by that order to one of prejudice to him. That being so, he could not apply under Section 66(2) to the Income-tax Commissioner no order to his prejudice having been passed. He however alternatively now asks that the (matter may be dealt with under Section 45, Specific Relief Act. This remedy is clearly not open to him because a remedy is provided by Section 50(a)(1) of the Amended Act. That provides that,
any person objecting to a refusal of an Income-tax officer to allow a claim to a refund under Section 48 or 48-A or 49 or to the amount of the refund made in any such case, may appeal to the Assistant Commissioner.
3. That provision was in force at the time when the order of the Income-tax Officer in this case refusing. a refund was made and that was the assessee's remedy, and having that remedy open to him he did not avail himself of it. Section 45, Specific Relief Act, cannot therefore be invoked to the relief of the petitioner here. For these reasons the petition must be dismissed with costs, Rs. 150, to the Commissioner of Income-tax.
4. I agree.
5. I agree.