Rajagopala Ayyangar, J.
1. This petition involves virtually the proper construction of the Proviso to section 66 (1) of the Indian Income-tax Act. Section 66 enacts:
66 (1) : Within sixty days of the date upon which he is served with notice of an order under Sub-section (4) of Section 33, the assessee or the Commissioner may, by application in the prescribed form, accompanied where application is made by the assessee by a fee of one hundred rupees, requires the Appellate Tribunal to refer to the High Court any question of law arising out of such order, and the Appellate Tribunal shall, within ninety days of the receipt of such application draw up a statement of the case and refer it to the High Court:
Provided that if, in the exercise of its powers under Sub-section (2), the Appellate Tribunal refuses to state a case which it has been required by the assessee to state, the assessee may, within thirty days from the date on which he receives notice of the refusal to state the case, withdraw his application and, if he does so, the fee paid shall be refunded.
2. Sub-section (a) which is referred to in the Proviso runs:
If on any application being made under Sub-section (1) the Appellate Tribunal refuses to state the case on the ground that no question of law arises, the assessee or the Commissioner, as the case may be, may, within six months from the date on which he is served with notice of the refusal, apply to the High Court, and the High Court may, if it is not satisfied of the correctness of the decision of the Appellate Tribunal, require the Appellate Tribunal to state the case and to refer it, and on receipt of any such requisition the Appellate Tribunal shall state the case and refer it accordingly.
3. The assessment of the petitioner was referred for investigation to the Income-tax Investigation Commission. The Commission after enquiry submitted a report to the Central Government and on the basis of this order an assessment was made against the petitioner. Thereafter the petitioner made an application to the Commissioner of Income-tax under Section 8(5) of the Taxation on Income (Investigation Commission) Act, 1947, for directing a reference of certain questions of law for the decision of this Court. Section 8 (5) of the Taxation on Income (Investigation Commission) Act, 1947, enacted:
8(5) : In respect of any order made in the course of proceedings taken in pursuance of a direction issued under sub-section (2)... the person concerned may, within 60 days of the date upon which he is served with a copy of such order, by application in the prescribed form accompanied by a fee of Rs. 100, require the appropriate Commissioner of Income-tax to refer to the High Court any question of law arising out of such order and thereupon the provisions of sections 66 and 66-A of the Income-tax Act, 1922, shall as far as may be apply....
4. As required by this provision the petitioner paid a fee of Rs. 100 for this Reference Application numbered as 1 of 1954-55.
5. While this application for reference was pending before the Commissioner, the petitioner filed a petition under Article 32 of the Constitution before the Supreme Court challenging the validity of the order of the Investigation Commission, directing the assessment, on the ground that the provisions of the Act which clothed the Investigation Commission with the power to make the order were ultra vires the Constitution. The petitioner succeeded in his application to the Supreme Court1 and the orders passed by the Investigation Commission were quashed and as a result, the assessment which was the subject of the Reference Application stood cancelled. Thereafter the Commissioner of Income-tax passed an order on nth April, 1956 in these terms:
Reference : Applications G.R.A. 1 to 20 of 1954. Order under Section 8(5) of the Taxation on Income (Investigation Commission) Act, 1947.
These applications arise out of the proceedings under the Taxation on Income (Investigation Commission) Act, 1947 The Supreme Court has since issued a Writ of certiorari quashing the report of the Investigation Commission, dated 29th August, 1952 and the orders of the Incometax Officer for the assessment years 1940-41, 1941-42 and 1943-44 to 1948-49
In these circumstances, these reference applications have become infructuous and are accordingly rejected.
6. This order was communicated to the advocate of the petitioner on his behalf. The exact date on which the order was served upon the advocate is not clear but nothing much turns on it. But the next matter to be noticed is that on 10th May, 1956 the petitioner through his advocate requested the Commissioner to refund to him the fee of Rs. 100 paid in respect of the application. It may be mentioned that there were 20 applications for reference, C.R.A. Nos. 1 to 20 where the questions raised were common and the order of the Commissioner, dated nth April, 1956 as well as the application for the refund was in regard to all the 20 reference applications. The Commissioner however wrote back on 17th May, 1956 to say that the reference fees paid were not refundable. The petitioner's advocate sent a further communication, dated 29th July, 1956 in the course of which he drew the attention of the Commissioner to the relevant statutory provisions and pointed out that the action of the Commissioner amounted to a refusal to state a case which entitled the assessee to a refund, he having within 30 days applied for the refund thus intimating his having withdrawn the application. The Commissioner persisted in declining to refund his fees and the petitioner has filed this petition invoking the jurisdiction of this Court under Article 226 of the Constitution to direct the Commissioner to make the refund.
7. As I said in the opening, the right of the petitioner to the relief turns upon the proper construction of section 66 of the Income-tax Act. Though at one stage Mr. Jagadisa Ayyar, learned Counsel for the petitioner, made some submissions on the footing that even if the statute did not apply, the petitioner would be entitled to relief at common law, I was not impressed with this argument for obvious reasons. The payment was voluntary in the sense that there was no obligation upon the petitioner to make the payment and therefore notwithstanding the Investigation Commission Act or the main and operative provisions thereof might have been declared ultra vires, the payment of Rs. 100 made under Section 8(5) of that Act could not be said to be a payment under coercion, of which return could be sought under the general law. Nor did I see any scope for the application of the doctrine of unjust enrichment to enable the petitioner to obtain the relief.
8. I will therefore confine myself to the consideration of the point as to whether the petitioner is entitled to the relief which he seeks under section 66 of the Income-tax Act.
9. To start with, I might premise the discussion by stating that the point now raised is not covered by any direct authority and there has been no decision on the construction of Section 66(i) and (2) relevant to the present context. On the terms of the Proviso the right to a refund arises on two conditions being fulfilled : (1) The Tribunal should have refused to state a case in exercise of its powers under Sub-section (2). (2) The assessee must within 30 days of the date on which he receives notice of this refusal withdraw the application for the reference. Learned Counsel for the Department urged that neither of these conditions was satisfied in the present case.
10. I shall now consider whether the first condition has been satisfied, namely, the Tribunal refusing to state a case on the ground mentioned in Sub-section (2). One has therefore necessarily to go to that sub-section to find out whether the rejection of the Reference Application in the present case was (a) a refusal to state a case and (b) whether it was in the exercise of the powers under Sub-section (2). I entertain no doubt, and indeed the matter looks to me incapable of argument to the contrary that the dismissal of the Reference Application does amount to a ' refusal to state a case '. Sub-section (2) contemplates only two alternative orders being passed and only two : (1) stating a case and (2) refusal to state a case. Of course if it refuses to state a case it dismisses the petition. From this it would appear that the dismissal of a petition is merely one mode of expressing the same idea as a refusal to state a case. Learned counsel, however, urged that in the present case the refusal to state a case was not because no question of law arose but because of the decision of the Supreme Court which had set aside both the order of the Income-tax Investigation Commission and the assessment in pursuance thereof which constituted the basis of the Reference Application. For this reason learned Counsel contended that the refusal to state a case was not on the ground that a point of law did not arise, but that there was no assessment in regard to which any point of law required to be answered. I am unable to accept this submission. If, as I said, there were only two orders which a Tribunal (or the Commissioner in the present case acting in the place of the Tribunal under Section 8(5) of the Taxation on Income (Investigation Commission) Act) could pass, namely to make or refuse the reference, any order refusing the reference would be an order passed in the exercise of its powers conferred by sub-section (2). For instance if a point of law arose on the order of the Tribunal and if there was a decision of the Supreme Court directly upon that point before the order was passed in the Reference Application, the Reference Application would naturally be refused on the ground that it was concluded by the decision of the highest Court. At that stage it could properly be said that though a point of law did arise on the order, it ceased to be a point which required consideration at the hands of the High Court. The rejection of such a petition would be a refusal to state a case on the ground that no point of law arose within Section 66(2).
11. In the counter-affidavit filed on behalf of the respondent it is pointed out that applications for reference might be dismissed on various grounds such as their being filed out of time or because the points of law suggested were frivolous. It is unnecessary to consider the case of Reference Applications filed out of time, as that is a matter which is covered by Sub-section (3) of section 66. Section 66 (2) assumes a petition in time and in regard to which the Tribunal is competent to state a case if questions of law arose out of the order. As regards frivolous points of law, I do not see how they are in any way different from cases where no question of law arose ; they all fall into the same category.
12. I, therefore, hold that the first condition for the right to a refund, namely, refusal to state a case in exercise of the power conferred under Section 66(2), has been estblished by the petitioner.
13. I am also of the opinion that the petitioner has satisfied the second condition. He did make an application for the refund of the fee paid within the limit of 30 days and I entertain no doubt whatsoever, that in the circumstances of the present case claiming a refund amounted to a withdrawal of the petition for reference. This condition also being satisfied, in my opinion, the petitioner is entitled to the relief which he seeks. The petition is allowed and the rule nisi is made absolute. There will be a direction to the respondent to refund the sum of Rs. 100 paid by him in regard to the Reference Application No. 1 of 1954-55. The petitioner will be entitled to his costs. Counsel's fee Rs. 150.
14. Before parting, I desire to mention one matter to which I have alluded even in the course of the judgment. 20 assessments were covered by the orders of the Investigation Commission and in fact 20 references, one for each, were filed before the Commissioner for which a total sum of Rs. 2,000 was paid at Rs. 100 for each petition. At the time when this writ petition was filed, counsel for the petitioner addressed a letter to the Commissioner of Income-tax suggesting that the latter might agree to treat this petition as a test case and abide by the directions contained in it with reference to the other applications. I should consider the 'suggestion very reasonable The Commissioner, however, declined to do so with the result that this petition is confined to Reference Application No. 1 of 1954-55. The result of the attitude adopted by the Commissioner would merely mean that the petitioner would be obliged to file further 19 petitions for the relief in regard to the other 19 deposits incurring costs which such a procedure must involve. In view, however, of the position take by the Commissioner this has become inevitable. I do hope that this attitude will not be persisted in, but that the department will give effect to my decision if they do not challenge it in appeal, in all the other cases also and thus avoid unnecessary costs as well as waste of judicial time.