Manohar Lall, J.:— The sole question for determination by this specially constituted Bench is whether the application of the petitioner for leave to appeal to His Majesty in Council is maintainable under clause 31 of the Letters Patent of this Court. The application was also headed under section 110 of the Code of Civil Procedure but learned Counsel, while moving this application, rightly conceded that he had no right to invoke the jurisdiction of this Court under section 110 of the Code of Civil Procedure.

The circumstances under which this application came to be presented may be shortly stated. The applicant was assessed to income-tax for the year 1938-1939 by the Income-tax Officer, Gaya, on the 15th October, 1938, on an assessable income of Rs. 72,080 against a total income of Rs. 23,658 returned by the assessee. The appeal to the appellate Assistant Commissioner met with a partial success in that the assessable income was reduced by Rs. 4,000 only. Against this order, dated the 31st July, 1939, the assessee moved the Commissioner of Income-tax to exercise his powers of revision under section 33 of the Indian Income-tax Act of 1922 (hereinafter referred to as the ‘Act’) and also desired that he should state certain questions of law for the opinion of the High Court under section 66(2) of the Act. The Commissioner by order dated the 21st February, 1940, declined to interfere. By an order of the same date (both these orders appear to have been actually signed on the 24th of February) he refused to refer to the High Court the questions formulated by the assessee on the ground that these questions were really questions of fact. Against this refusal of the Commissioner to make a reference to the High Court the assessee moved a Bench of this Court to exercise their powers under section 66(3) of the Act. But the application was summarily rejected on the 5th of August, 1940, and the income-tax authorities were allowed to retain as their costs the sum of Rs. 100 lying in deposit with them, this being the amount of fee which accompanied the application under section 68(2) as required by the statute.

It is now well settled by the highest authority that the right to appeal must be given by express enactment and cannot be implied. In the case of Sandback Charity Trustees v. North Staffordshire Railway Company Lord Bramwell, then Bramwell, L.J, observed: “An appeal does not exist in the nature of things. A right of appeal from any decision of any tribunal must be given by express enactment”. This dictum was approved by their Lordships of the Judicial Committee in the case of Rangoon Botatoung Company, Ltd. v. The Collector, Rangoon. A special and limited appeal to the Judicial Committee was provided by the Act after its amendment in 1926. That provision is to be found in section 66A which provides by its second sub-section that

“an appeal shall be to His Majesty in Council from any judgment of the High Court delivered on a reference made under section 66 in any case which the High Court certifies to be a fit one for appeal to His Majesty in Council”.

It is common ground that section 66A has no application to the present case because the High Court did not deliver any judgment on any reference made under section 66. All that the High Court did by its order dated the 5th August, 1940, was to refuse to require the Commissioner of Income-tax to state a case. It is for this reason that the application is made to this Court for leave to appeal to His Majesty in Council not under any provision of the Act but under clause 31 of the Letters Patent of this Court.

Before considering whether the applicant is entitled to come under clause 31 of the Letters Patent it will be useful to consider what is the nature of the jurisdiction which this Court exercises under section 66 of the Act.

In the case of Tata Iron and Steel Company, Limited v. Chief Revenue. Authority, Bombay, Lord Atkinson in delivering the judgment of the Judicial Committee held, while dealing with the effect of similar provisions of section 51(2) of the then Income-tax Act, that “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, therefore, it was held that the appeal to His Majesty in Council was incompetent.

After that decision the Act was amended on the 1st of April, 1926, by Act XXIV of that year. An attempt was made in the case of The Delhi Cloth and General Mills Company, Limited v. The Commissioner of Income-tax, Delhi to prefer an appeal to His Majesty in Council against the decision of the High Court at Lahore on reference to that Court under section 66(2) of the Act as it stood before its amendment in 1926. Lord Blanesburgh, in delivering the judgment of the Board, pointed out that “until the case of Tata Iron and Steel and Co., Ltd. v. Chief Revenue Authority of Bombay was decided by the Board, it was apparently generally supposed in India that appeals from such orders were regulated by sections 109 and 110 of the Code of Civil Procedure, to which reference has already been made. The effect of the judgment in the case cited was, however, definitely to lay it down that from these orders there was, in fact, no statutory right of appeal at all. And such was the position until the 1st April, 1926, when the Indian Income-tax (Amendment) Act, 1926, came into force”. It is clear, therefore, that it can no longer be argued that appeals from orders passed by the High Court under section 66 of the Act can be regulated by sections 109 and 110 of the Code of Civil Procedure. Their Lordships then considered the further point at the bottom of page 442: “Is there under this section any appeal at all from an order of the High Court made before the Act of 1926 came into force?” and held that the statutory right of appeal which was being conferred by the Act of 1926 could not apply retrospectively to orders which had been passed under the Act before the amendment in 1926. It will be observed that no attempt was made to bring the case under the Letters Patent.

In the case of Commissioner of Income-tax, Bombay Presidency and Aden v. Bombay Trust Corporation, Limited Sir George Rankin while considering the nature of an order passed under the Act (after it was amended) observed at page 427, following Tata Iron and Steel Company's case, that the order was “advisory”.

The same view has been taken in a still later case of the Judicial Committee reported in Rajendra Narayan Bhanj Deo, Raja Bahadur v. Commissioner of Income-tax, Bihar and Orissa, where Lord Justice Luxmoore in delivering the judgment of the Board pointed out, at page 773, that “the function of the High Court in cases referred to it under Section 66 of the Act is advisory only, and is confined to considering and answering the actual question referred to it”.

Such then being the nature of the order which the High Court passes under section 66 of the Act, can the petitioner invoke the aid of clause 31 of the Letters Patent of this Court? This clause provides that any person may appeal to His Majesty in Council, first, in any matter not being of criminal jurisdiction, from any final judgment, decree or order of the High Court of Judicature at Patna made on appeal, and second, from any final judgment, decree or order made in the exercise of original jurisdiction by the High Court from which an appeal does not be to the High Court under clause 10. In order, therefore, that the appeal in this case should be held to be competent the order of the High Court under section 66 of the Act must come within the terms of this clause, that is to say, it must be either a final judgment or a final decree or a final order. After the decision in Tata Iron and Steel Company's case, where this question was expressly decided, it cannot be held that the order passed by this Court on the 5th August, 1940, was either a final judgment or a final decree or a final order as required by clause 31 of the Letters Patent.

But it was argued that the order of the High Court refusing to require the Commissioner of Income-tax to state a case was a final order in the sense that it was final between the parties. I am unable to agree with this contention because the order of the High Court merely meant that they were not satisfied that any materials were to be found in the application then presented which would induce them to consider even prima facie that there was any necessity to advise the Commissioner. It is difficult to understand how such an order can be held to be a final order when if the High Court had admitted the application and then passed the same order, that order would not be a final order within the meaning of clause 31 of the Letters Patent. It may be observed here that the practice in this Court is that the Commissioner of Income-tax is allowed to represent his case through the Standing Counsel at the time when an application comes for admission to the High Court. This procedure is in consonance with the direction contained in the observation of Lord Blanesburgh, who in delivering the judgment of the Board in The Trustees Corporation, Limited v. The Commissioner if Income-tax, Bombay, expressly desired that “the High Court will, in future cases, be well advised to require, before they seek to entertain any questions under section 66 of the Indian Income-tax Act, that the preliminary requirements of the section are strictly complied with. The stringency of these requirements is clearly deliberate. It is the intention of the enactment that the High Court is not to be flooded with such applications. The object is salutary and in their Lordships' judgment the High Court will be well advised, before they entertain any question under the section, always to see that the preliminary statutory conditions have been fully observed”. It is in view of these observations that the High Court is careful to see, on hearing Counsel for the assessee and the Standing Counsel for the Income-tax Department at the preliminary hearing, that the application should only be admitted if any question of law arises for consideration and not where the question is merely a question of fact.

I respectfully desire to adopt the following observations of the learned Chief Justice of the Madras High Court while disposing of a similar contention in O.V.R.S.V Arunachalam Chettiar v. The Commissioner of Income-tax, Madras: “I should like to point out also one very strange result, which would follow if such an appeal did lie. The High Court might have before it an utterly frivolous application to direct the Commissioner of Income-tax to refer certain questions to the High Court for the High Court's opinion. The High Court would reject that application. Nevertheless, if the sum involved were Rs. 10,000 and upwards, the petitioner would have an appeal as of right to the Privy Council. Contrast this with the position of an assessee who has come to the High Court with a petition asking for a reference which the High Court deals with and is of the opinion raises points of law which should be referred by the Commissioner of Income-tax to the High Court and directs a reference to be made. And on the reference to the High Court answers those questions against the assessee. That assessee has not got an appeal as of right to the Privy Council at all, although prima facie he had an arguable case on a point or points of law; and he can only appeal to the Privy Council if the High Court certifies that the case is a fit one for appeal. He is thus in a much less favourable position than the person who presents to the High Court an utterly frivolous application for a reference to the Income-tax Commissioner. That seems to me to be a rather striking example of what would be the result of the contention put before us today if it were the correct one. In my opinion no appeal lies”.

Apart from the view taken by the Lahore High Court in Feroze Shah Kaka Khel v. The Commissioner of Income-tax, Punjab and N.W.F Provinces the current of authority of the other High Courts seems to be in favour of the view that no appeal lies to His Majesty in Council under the Letters Patent from an order of the High Court dismissing an application under section 66(3) of the Act to direct the Commissioner of Income-tax to state a case even though the subject-matter involved is Rs. 10,000 or more in value (as is admittedly the case in the application under consideration). I have already referred to the Madras case—O.V.R.S.V Arunachalam Chettiar v. The Commissioner of Income-tax, Madras where the Special Bench held that an order of the High Court in these circumstances was not appealable to the Privy Council under the Letters Patent. The Rangoon High Court has taken the same view in E.M Chettyar Firm v. The Commissioner of Income-tax, Burma although it was assumed in that case that the order in question was a final order within the meaning of the Letters Patent. In Gurmukh Rai v. Secretary of State Sulaiman, C.J and Bajpai, J. came to the same conclusion.

But it was argued that the decision of the Lahore High Court in Feroze Shah Kaka Khel v. The Commissioner of Income-tax, Punjab and N.W.F Provinces was not dissented from by their Lordships of the Judicial Committee when disposing of the appeal from that decision in Khan Sahib Mian Feroze Shah v. The Commissioner of Income-tax, Punjab and N.W.F Provinces and on this ground we were asked to grant leave to appeal to His Majesty in Council in the present case. On a perusal of the judgment delivered by Lord Blanesburgh it appears that the Board went into the matter and dismissed the appeal on the merits and, therefore, it became unnecessary for their Lordships to deal with the objection to its competence. His Lordship observed at page 30: “The objection is a serious one. Admittedly, such an appeal as the present is not authorised by the Indian Income-tax Act itself. If open at all, it must be justified under clause 29 of the Letters Patent of the Lahore High Court as being an appeal “from a final judgment, decree or order made in the exercise of original jurisdiction” by a Division Bench of the Court. And this present appeal was held by the Full Court to be so justified. Before the Board the question was not fully argued, and their Lordships accordingly refrain from expressing any opinion whatever upon it. It is desirable, they think, that it should await final determination in a case where it is not, as it has here become, purely academic”. I do not understand these observations to express any approval of the decision of the Lahore High Court. The matter remains at large to be decided by their Lordships when they deem it fit to decide in a proper case. But the mere fact that the question is a serious one is no ground for this Court to grant leave to appeal to His Majesty in Council, when I am satisfied that there is no right of appeal to the Privy Council from any order, preliminary or final, passed by this Court while exercising its jurisdiction under section 66 of the Act.

For these reasons the application for leave to appeal to His Majesty in Council is dismissed with costs. I would assess the hearing fee at Rs. 100.

Harries, C.J:— I agree.

Fazl Ali, J.:— I agree.

S.A.K

Application dismissed.

Leave refused.