N.A.S.V. Venkatachalam Chettiar vs The Commissioner of Income Tax

Horace Owen Compton Beasley, Kt., C.J.—This is a petition u/s 66(3) of the Indian Income Tax Act as amended. The petitioner applied

to the Income Tax Officer for a refund of Income Tax u/s 48 of the Act. This application was refused. The Petitioner then got the Commissioner of

Income Tax to take the matter up in review u/s 33 and in review the Commissioner refused to interfere with the order of refusal of the Income Tax

Officer. It is common ground that the Order made by the Commissioner was one u/s 33. The Petitioner then required the Commissioner of Income

Tax to refer the matter which he suggested was a question of law to the High Court u/s 66(2) of the Income Tax Act. The Commissioner took the

view that that application to him u/s 66(2) was incompetent because his order u/s 33 was not one enhancing the assessment or otherwise

prejudicial to the applicant (the assessee). Section 66(2) which contains an amendment affecting this question reads as follows:

Within sixty days of the date on which he is served with notice of an order u/s 31 or Section 32 or of an order u/s 33 enhancing an assessment or

otherwise prejudicial to him...the assessee in respect of whom the order or decision was passed may by application require the Commissioner to

refer to the High Court any question of law arising out of such order.... The view taken by the Commissioner is that his order is not one which

comes within the words otherwise prejudicial to him (the assessee).

With that view we entirely agree. What Section 33 clearly contemplates is an order made by the Commissioner which alters the position of an

assessee or an applicant to that person''s prejudice. In this particular case, his position had been prejudiced already by the refusal of the Income

Tax Officer to grant him the refund which he required. The Commissioner''s order did no more than leave him in that position and, it is quite clear

to us, was not an order which was prejudicial to the Petitioner in the sense intended, namely, that his position at that time is, the date of the

Commissioner''s order was altered by that order to one of prejudice to him. That being so, he could not apply u/s 66(2) to the Income Tax

Commissioner, no order to his prejudice having been passed. He, however, alternatively now asks that the matter may be dealt with u/s 45 of the

Specific Relief Act. This remedy is clearly not open to him because a remedy is provided by Section 50(a)(1) of the Amended Act. That provides

that:

Any person objecting to a refusal of an Income Tax Officer to allow a claim to a refund u/s 48 or 48-A or 49 or to the amount of the refund made

in any such case, may appeal to the Assistant Commissioner.

That provision was in force at the time when the order of the Income Tax Officer in this case refusing a refund was made and that was the

Assessee''s remedy and having that remedy open to him he did not avail himself of it. Section 45 of the Specific Relief Act cannot, therefore, be

invoked to the relief of the petitioner here.

For these reasons, the petition must be dismissed with costs Rs. 150 to the Commissioner of Income Tax.

Ramesam, J.

I agree.

King, J.

I agree.