1. This is an application for leave to appeal to the Privy Council from a decision of this Court on a reference to it, under Section 51 of the Income Tax Act, VII of 1918. The question involved in this reference is a dim cult and important point of law of very great and general importance. I am therefore prepared to certify that although the actual amount involved in this reference is only about Rs. 6,000, the case is a fit one for appeal to His Majesty in Council, provided that we have the power to certify, that is, provided an appeal lies. This depends on whether our decision in this case is a final judgment of the High Court either in its Ordinary Original Civil Jurisdiction, or extraordinary Original Civil Jurisdiction, or in its Appellate Jurisdiction, because under Clause 39 of the Letters Patent it is only on these matters that an appeal lies. I agree that there is no inherent right of appeal and that unless such right is conferred by the Letters Patent or by statute there can be none. I have no doubt that our decision is a, judgment and also that it is final. The power of determining income tax questions is conferred by the Income Tax Act, VII of 1918. By Section 51 the Chief Revenue Authority may, and in certain circumstances on the application of the assessee himself must, draw up a statement of the case and refer it with his own opinion to the High Court, and the High Court has to decide the question raised and deliver judgment, and that judgment is to be acted upon. Apart from this provision, the High Court by reason of Section 106 of the Government of India Act has no power to deal with Revenue matters. The Section confers this jurisdiction on the Court and in my view these income tax cases are referred to the Court as a Court and it must follow that the ordinary rights of appeal from that Court are available This principle is clearly enunciated in National Telephone Co. v. Post Master General  A.C. 546. The Government in that case had taken over the assets of the National Telephone Company and by the Telegraph (Arbitration) Act, 1909, (9 Edw. VII, C. 20 Section 1), it was provided that any difference as to price and other matters, if the parties agreed, be referred to the Railway and Canal Commission and that that commission should determine the same point. The Railway Canal Commission is a statutory body and there are certain rights of appeal from its decision. The matters in dispute between the National Telephone Company and the Government were by agreement referred to that Commission and a decision was given; Upon appeal it was argued that no appeal lay, no right to appeal having been conferred by the statute; but it was held that jurisdiction having been conferred on that tribunal, it followed that all the usual rights of appeal from that tribunal were also conferred. The point was shortly stated by Lord Parker at p. 562:
Where by statute matters are referred to the determination of a Court of record with no further provision, the necessary implication is, I think, that the Court will determine the matters as a Court. Its jurisdiction is enlarged but all the incidents of such jurisdiction including the right of appeal from its decision remain the same.2. The same principle has been applied here in cases under the Madras Forest Act V of 1892, which gives a right of appeal from a Fort st Officer to the District Judge without providing for any appeal from the District Judge to the High Court. It was held by the High Court that when the District Court was reached, that Court is appealed to as one of the ordinary Courts of the country, with regard to whose procedure, orders and decrees, the rules of the Civil Procedure Code are applicable and that therefore an appeal lay to the High Court: Secretary of State v. Chellikani Rama Rao  39 Mad. 617.
3. It was argued that the decision of the Privy Council in Rangoon Botatoung Co. Ltd. v. The Collector, Rangoon  40 Cal. 21 was against this view. Under the Land Acquisition Act, I of 1894 where lands are taken over for public purposes, the Collector is appointed arbitrator between the Government and the parties. Under Section 18, he may be required to refer the matter for the determination of the Court, the Court for this purpose being a principal Civil Court of Original Jurisdiction. By Section 54, an appeal is given from what is termed an award of that Court to the High Court. Two judges of the Chief Court of Burma sat to hear the reference and it was held by the Privy Council that no appeal lay from their decision, applying the principle stated by Bramwell, L.J. in Sandbak Charity Trustees v. North Staffordshire Railway Co.  3 Q.B.D. 1.
An appeal does not exist in the nature of things. A right to appeal from any decision of a tribunal must be given by express enactment.4. So far as the actual decision is concerned, I think that the fact that the two Judges sat as arbitrators and not as a Court in the ordinary sense is established by the words of the Act itself, which calls the r decision an award, and not a judgment. It was, however, suggested that these judges were sitting not only on the reference to them by the Collector, but also as an appellate tribunal under Section 54. It is difficult to understand how these could be so, because it seems impossible that the two judges could be hearing a case as arbitrators and at the same time be hearing an appeal from their own decision, which had not yet been given. Lord Shaw in Secretary of State v. Chellikani Rama Rao  39 Mad. 617, explains this judgment, by saying that the proceedings were from beginning to end ostensibly and actually arbitration proceedings' and in Ramachandra Rao v. Ramachandra Rao 1922 P.C. 80, their Lordships of the Privy Council explained the decision in Rangoon Batatoung Co. v. The Collector of Rangoon  40 Cal. 21, in the same way: see p. 329. I think it is clear on these authorities that the principles enunciated in the National Telephone Co.'s Case  A.C. 546 are considered, as being of general application in this country and are in no way affected by the decision in Rangoon Botatoung Co. Ltd. v. The Collector of Rangoon  40 Cal. 21. This Court does not sit in any other capacity than in the exercise, of its Ordinary and Extraordinary Original Civil Jurisdiction and its Appellate Jurisdiction : See Chappan v. Moidin Kutti  22 Mad. 68 and In the matter of Candas Narrondas Navivahu and C.A. Turner  13 Bom. 520. It does not sit in a further capacity, namely, to try matters referred to it by statute. It would be possible for the legislature to empower the judges to sit as arbitrators and without appeal, but it would require plain language to impose such duties and there is nothing in the Income Tax Act, to indicate any such intention. Whether in this case we are sitting in our Original Jurisdiction, or in bur Appellate Jurisdiction as was held in Birendra Kishore Manikya v. Secretary of State  48 Cal. 766, is immaterial, for, in either case, there is a right of appeal, or power to give leave to appeal, to the Privy Council. There is direct authority on the point in Tata Iron and Steel Co. v. Chief Revenue Authority, Bombay : AIR1921Bom128(1) , with which for the reason stated above I agree.
5. Accordingly a certificate for leave to appeal to His Majesty in Council will be granted. Costs of this application will be costs in the cause.
Coutts Trotter, J.
6. This was a case referred to the High Court by the Chief Revenue Authority under the powers conferred upon it to that end, by Section 51(1)(9) of the Income Tax Act, VII of 1918. The Revenue Authority being dissatisfied with the determination of the High Court, is desirous of obtaining leave to appeal to the Privy Council.
7. With the merits of the question, we are not concerned. The only point we have to determine is that raised by way of preliminary objection by the Assessee, viz., that we have no power to grant leave to appeal in any event. There can be no question as to the fulfilment of the conditions requisite for an appeal being allowed, for though the value is only Rs. 6,000, the legal importance of the question raised by the reference is obviously great. But Mr. Grant has argued that the provisions of the Code of Civil Procedure do not apply, that there is a special machinery provided by the Income Tax Act beyond which you must not look, and that, unless there is an express provision in the Act, for an appeal to the Privy Council, there is no jurisdiction in this Court to grant leave. The chief authority which he cites for that position is Rangoon Batatoung Co. Ltd. v. The Collector of Rangoon  40 Cal. 21, a, decision of the Privy Council, on appeal from the Chief Court of Lower Burma, under the Land Acquisition Act, I of 1894, and it was there held that, as the Land Acquisition Act conferred no express right of appeal, none existed, following the observation of Lord Bramwell in Sandband Charity Trustees North Staffordshire Railway  3 Q.B.D. 1.
An appeal does not exist in the nature of things. A right of appeal from any decision of any tribunal must be given by an express enactment.8. In that case an award of a Collector, as to Valuatiori was referred to the Court of Lower Burma, under the provisions of the Act, and it was quite possible to take the view that, in effect, the judges forming the Court were to be regarded as arbitrators making an award, from which award no appeal would lie unless expressly conferred. But at p. 25 of the report, Lord Macnaughten, who delivered the judgment of the Board, makes the following observation:
They (that is the representatives of the Chief Court) sat as 'the Court' and also as the High Court to which an appeal is given by the Act from, the award of 'the Court'.9. This would seem to indicate that, in the opinion of the Board, the Chief Court of Lower Burma was in that case invested with the functions of a Court of law, as well as those of arbitrators. I do not profess to understand how any Court can be supposed to be combining, at one and the same sitting, the functions of arbitrators with those of an appellate tribunal, apparently a tribunal sitting in appeal from itself in its other contemporaneous exercise of its functions as arbitrators. But I think it is not going too far to say that that decision has been treated as being based on the view that the Land Acquisition Act made the Chief Court arbitrators, and no more. That view appears to have been adopted by Lord Macnaughten himself in The Special Officer, Salsette Building Sites v. Dasabhai Bezanji Motiwala , see also the observations of Lord Shaw in Secretary of State for India v. Chellikani Rama Rao  39 Mad. 617.
10. Mr. Grant's argument is as follows: By Section 106 of the Government of India Act, the Ordinary Courts of this country are debarred from inquiring into matters concerning the revenue. The Income Tax Act of 1918 gives power to the Board of Revenue and in a sense creates a right in the assessee to refer a formal special case for the opinion of the High Court.
11. His contention is that the Act of 1918 is exhaustive, as to this subject, and that, when the High Court has given its opinion, the matter is ended, as the statute makes no provision for a further appeal to the Privy Council. If the matter were res Integra, the inclination of my mind would be in accordance with this argument, but, I think, I am precluded by authorities of great weight from acceding to it. The principle that I conceive to be established by those authorities is this, that where you find the jurisdiction of a Court is extended by a statute to matters, which would not ordinarily come within its purview, that extension of jurisdiction makes the new matters subject to all the machinery provided by law, for the regulating of its ordinary jurisdiction, as a Court of record, the machinery in this instance being Code of Civil Procedure. That seems to me to be emphatically laid down by the House of Lords in National Telephone Co. Ltd. v. Postmaster General  A.C. 546. There, by a special statute, it was enacted that, on the taking over of the company by Government, all matters in dispute should be determined by Railway and Canal Commission. The decision of the House of Lords was to the effect that the referring of of the matter to the arbitrament of the Railway and Canal Commission brought into operation all the machinery of appeal provided by the Railway and Canal Traffic Act, 1888 and allowed an appeal from it, notwithstanding the absence of any express provision in the special Act. I think that that position had been previously established for India in In the matter of Candas Narrondas Navivahu and C.A. Turner  13 Bom. 520 by the Judicial Committee. This has been the consistent view of this Court, and it has been endorsed by the Privy Council in Secretary of State v. Chellikani Rama Rao  39 Mad. 617. I am, therefore, constrained to hold that, when once this Court has its jurisdiction extended by a special Act, the case which is thus put under its jurisdiction becomes subject t0 the provisions of the Code of Civil Procedure, with all its incidents, including the duty to grant leave to appeal to the Privy Council, in cases which satisfy the conditions of the Code. As 1 have said, there is no question but that this case satisfies those conditions and I, therefore, am of opinion that leave to appeal must be granted. [cf. 1923 P.C. 138, and 1923 P.C. 148].