1. This appeal is preferred under Section 15 of the Letters Patent against a decision of Mr. Justice Rankin. There was a Reference under Section 66 (2) of the Indian Income Tax Act (Act XI of 1922) made by the Commissioner of Income Tax to the High Court. It was heard by a Bench consisting of Mr. Justice Rankin and Mr. Justice Page. The learned Judges differed in opinion and under Section 36 of the Letters Patent, the opinion of the Senior Judge, Mr. Justice Rankin, prevailed. As against that judgment the present appeal has been preferred.
2. A preliminary objection has been raised on behalf of the respondent that no appeal lies in this case under Section 15 of the Letters Patent, and reliance has been placed upon the decision of the Judicial Committee in the case of Tata Iron and Steel Company, Limited, v. Chief Revenue-authority, Bombay (1923) I. L. R. 47 Bom. 724; L. R. 50 I. A. 212. The question in that case was whether an appeal lay to the Privy Council under Clause 39 of the Letters Patent of the Bombay High Court from a decision of the High Court upon a case stated and referred to the Court by the Chief Revenue authority under Section 51 of the Indian Income Tax, Act, 1918, which corresponds to Section 66 of the present Income Tax Act of 1922. Section 39 of the Letters Patent of the Bombay High Court (which is similar to the Letters Patent of the Calcutta High Court) provides for an appeal to His Majesty in Council from a 'final judgment', decree or order of the High Court. Their Lordships in that case held that the judgment given by the High Court upon a case stated and referred the Court under Section 51 of Act VII of 1918 was not a 'final judgment, decree or order' within the meaning of Clause 39 of the Letters Patent. The expression 'final judgment' does not occur in Clause 15 of the Letters Patent. The word 'judgment' only appears there. But so far as the present question is concerned there is no difference between a final 'judgment' and a judgment. The question is whether the word 'judgment' is to be taken in the strict legal sense or as merely advisory. In the case quoted above their Lordships observe:
3. One must therefore ask oneself what is the nature and character of the act which Section 51 of the Income Tax Act authorises and empowers the High Court to do. It provides that, if in the course of any assessment under this Act, or in any proceedings in connection therewith (save an immaterial exception) a question arises with reference to the interpretation of any provision of the Act or any rule thereunder, the Chief Revenue-authority may either on his own motion or on reference from any officer of subordinate authority, draw up a statement of the case and refer it with his own opinion thereon to the High Court, and shall so refer any such question on the application of the assessee unless he be satisfied that the application is frivolous. The opinion of the Revenue-authority thus dominates and conditions the right of the assessee. Then it is pointed out that Sub-section (3) provides that on the hearing of this case the High Court shall decide the questions raised thereby, and shall deliver judgment thereon containing the grounds on which the decision is founded, and shall send to the Revenue-authority a copy of this judgment under the seal of the Court and the signature of the Registrar, and the Revenue-authority shall dispose of the case accordingly. Their Lordships further point out that the amount of the taxpayers liability is thus definitely fixed, but nothing more is done. The decision of the High Court does not in anyway enforce the discharge of that liability. It would appear clear to their Lordships that the word judgment' is not here used in its strict legal and proper sense. It is not an executive document directing something to be done or not to be done, but is merely the expression of the opinions of the majority of the Judges who heard the case, together with a statement of the grounds upon which those opinions are based. And finally their Lordships observe: It would appear to their Lordships that, having regard to the authorities cited, and for the reasons already stated, the decision, judgment or order made by the Court under Section 51 of the Income Tax Act in this case, was merely advisory, and not in the proper and legal sense of the term final, and thus, so far as these considerations are concerned, that the appeal is incompetent. All these observations apply to the present case and the judgment given upon the case stated is merely advisory, made by the Court in exercise of its consultative jurisdiction, and is not a judgment within the meaning of Clause 15 of the Letters Patent. That being so, we think there is no appeal under that section.
4. A question has been raised by the learned Counsel for the appellant that the decision of Mr. Justice Rankin, who was the Senior Judge, which was held to have prevailed, was without jurisdiction. But that is a matter upon which both the learned Judges were agreed and this Bench constituted to hear the appeal under Section 15, Clause (3) of the Letters Patent is not competent to consider the question as to whether the decision of the Division Bench upon a matter upon which both the learned Judges were agreed is or is not right.
5. The appeal is accordingly dismissed on the preliminary point.
6. We make no order as to costs of this appeal.