LEACH, C.J. - The Commissioner of Income-tax applies for a certificate permitting him to appeal to His Majesty in Council in respect of a decision of this Court on the effect of the second proviso to Sec. 4(2) of the Indian Income-tax Act. There can be no doubt that the question involved is a substantial question of law. As a matter of fact this Court placed a different interpretation on the proviso from that placed upon it by the Calcutta High Court.
The application is, however, opposed by the respondent on the ground that an appeal to His Majesty in Council would put him to considerable expense. He contends that if leave is granted it should be subject to the condition that the income-tax authorities pay his costs. It is quite clear that we have no power to impose any such condition and this was pointed out by this Court in the case of Rajarajeswari Sethupathi v. Tiruneelakantam Servai (44 M.L.J. 217). Our powers are confined in this respect to those conferred by Sec. 66-A of the Income-tax Act and the provisions of the Code of Civil Procedure, which have been made applicable to such appeals. Their Lordships of the Privy Council have on occasions, stipulated in granting special leave to appeal that the appellant shall bear the costs. But we have no such powers, as I have already indicated. When the appeal is heard in the Privy Council their Lordships will then decide the question of costs.
The learned Advocate for the respondent also says that leave should not be granted because the amount involved is less than Rs. 10,000. The actual amount of the tax in question is Rs. 3,500. But the respondent carries on as a planter a large business in the Mysore State and the question will arise each year while he remains in this business. Therefore, in the end the amount of tax will be very considerable. The learned Advocate has in this connection referred to the decision in Rajarajeswari Sethupathi v. Tiruneelakantam Servai, as the Court there refused leave to appeal to His Majesty. That was a case in which the petitioner was wishing to challenge a decision in respect of arrears of rent. There was a large number of respondents, but in each case the amount owed or alleged to be owed was very small. The decision does not apply to the present case because the amount involved, as I have indicated, is really substantial. The application for a certificate will, therefore, be granted.