P L D 1960 (W (PLP)

11. Section 59 of the Stamp Act reads " Section 59 (1).‑The High Court upon the hearing of any such case, shall decide the questions raised thereby, and shall deliver its judgment thereon containing the grounds on which such decision is founded. (2) The Court shall send to the Revenue‑Authority by which the case was stated a copy of such judgment under the seal of the Court and the signature of the Registrar ; and the Revenue‑Authority shall, on receiving such copy, dispose of the case conformably to such judgment."

11. Section 51 of the Income‑tax Act, 1918, was amended in 1922, and it became section 66, and the relevant provision reads as follows "Section 66 (5).‑The High Court upon the hearing of any such case shall decide the question of law raised thereby and shall deliver its judgment thereon containing the grounds on which such decision is founded and shall send a copy of such judgment under the seal of the Court and the signature of the Registrar to the Appellate Tribunal which shall pass such orders as are necessary to dispose of the case conformably to such judgment."

12. It, however, appears that in the year 1926, by Act XXIV of 1926, section 66‑A was added to the Income‑tax Act in which provision for appeal was made. It now reads " Section 66‑A (1).‑When any case has been referred to the High Court under section 66, it shall be heard by a Bench of not less than two Judges of the High Court, and in respect of such case the provisions of section 98 of the Code of Civil Procedure, 1908 shall, so far as may be, apply notwith standing anything contained in the Letters Patent of any High Court established by Letters Patent or in any other law for the time being in force. (2) An appeal shall lie to the Supreme Court 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 the Supreme Court. ` (3) The provisions of the Code of Civil Procedure, 1908, relating to appeal to the Supreme Court shall, so far as may be, apply in the case of appeals under this section in like manner as they apply in the case or appeals from decrees of a High Court Provided that nothing in this subsection shall be deemed to affect the provisions of subsection (5) or subsection (7) of section 66 Provided further, that the High Court may, on petition made for the execution of the order of the Supreme Court in respect of any costs awarded thereby, transmit the order. for execution to any Court subordinate to the High Court. (4) Where the judgment of the High Court is varied or reversed in appeal under this section, effect shall be given to the order of the Supreme Court in the manner provided in subsections (5) and (7) of section 66 in the case of a judgment of the High Court.."

13. It would appear that Government amended the Income -tax Act in the year 1926, after the judgment of their Lordships of the Privy Council to provide for appeal in certain cases arising out of assessment of Income‑tax, but no such amendment was made in the Stamp Act, in which the language has remained the same as in section 51 of the Income‑tax Act of 1918, or section 66 (5) of the Income‑tax Act of 1922.

14. The principle accepted by their Lordships of the Privy Council in Income‑tax cases must, therefore, apply to similar circumstances in cases under the Stamp Act.

15. The learned counsel for the petitioner argued before us that there were precedents of the Madras and Lahore High Courts to show that where the jurisdiction of a High Court is enlarged, the Civil Procedure Code should be held to be applicable and, therefore, an appeal in cases of reference would be competent.

16. The following rulings were referred to by the learned counsel for the petitioner. (1) Secretary, Board of Revenue Income‑tax, Madras v. Madras Export Co. A I R 1924 Mad. 63 (F. B.). In this case it was held that in a reference under section 51 of the Income‑tax Act, when the High Court gave a judgment, appeal would lie. The reasons given by their Lordships of the Madras High Court were that in such cases the jurisdiction of the High Court was enlarged and, therefore, the provisions of the Civil Procedure Code should be held to be applicable (p. 66). There is no reference in this judgment to the decision given by their Lordships of the Privy Council in Tatta Iron and Steel Co. v. The Chief Revenue Authority of Bombay (AIR 1923 PC 148), wherein it was held that an opinion given by the High Court under section 51 of the Income‑tax Act, 1898, is not a final judgment. The judgment of the Madras High Court was given on March 19, 1923, while the Privy Council judgment is dated March 12, 1923. As no reference was made to it, it appears that the decision of their Lordships of the Privy Council was not brought to the notice of the Madras High Court at that time. (2) The Second case referred to by the learned counsel for the petitioner was Raja Chettiar & Bros. v. Commissioner of Income‑tax, Madras (AIR 1951 Mad. 590). In this case a Division Bench of the Madras High Court distinguished the judgment of their Lordships of the Privy Council given in A I R 1923, P C

148. This was a case urns; the Income‑tax Act and a Bench of the Madras High Court held that a judgment delivered by a High Court on a deference under section 66 (1) Income‑tax Act is undoubtedly a (judgment passed in a civil case because the category of civil cases excludes only criminal cases from the application of the enactment, and, therefore, it is a judgment to which the Act applies within section 2 (b) of Act, I of 1948. The Madras High Court further held that it was also a judgment from which a direct appeal could be brought to His Majesty in Council under section 66‑A (2), Income‑tax Act. It is, therefore, a judgment from which an appeal lies to the Federal Court under section 3 of Act I of 1948.

17. In our opinion this judgment of the Madras High Court does not affect the ruling given by their Lordships of the Privy Council, because under section 66‑A (2), of the Income‑tax Act an appeal would lie to the Privy Council if the High Court certifies that it is a fit case for appeal to His Majesty in Council. As we have stated above, the appeal to the Privy Council in such a case became competent because of the amendment of the Income‑tax Act in the year 1926. The Stamp Act, however, still remains unamended since 1899, and there is no provision for an appeal from an opinion given by a High Court on a reference made under section 57 of the Stamp Act. This judgment of the Madras High Court, is, therefore, not helpful to the peti tioner at all.

18. We find on the other hand that the ruling given by their Lordships of the Privy Council in A I R 1923, P C 1,48, has been consistently followed by their Lordships of the Privy Council as well as High Courts in India In Commissioner of Income‑tax, Bombay v. Bombay Trust Corporation (AIR 1936 P C 269) it was held that the opinion given by the High Court under section 66 of the Income‑tax Act, was advisory. In Bechar Singh Raghubir Singh , v. Commissioner of Income -tax, Ll. P ;C. P. etc. (A I R 1948 Nag. 228), a Bench of that Court held that the High Court in cases under section 66 of the Income‑tax Act was only an advisory body. In Bhanj Deo v. Commissioner of Income‑tax, Bihar and Orissa (AIR 1940 P C 158) their Lordships of the Privy Council again confirmed that the function of a High Court under section 66 was advisory only, and was confined to the actual question referred. In Prem Chand Setramdas v. The State of Bihar (A I R 1951 S C 14), the Supreme Court of India held that an order of the High Court declining to call upon the Board of Revenue to state a case under section 21, Bihar Sales Tax Act, 1944, is not a final order passed in exercise of either original or appellate jurisdiction and is, therefore, not appealable. In cases instituted under the Bihal Sales Tax Act, the language of section 21 was not very much different from that of section 66 of the Income‑tax Act or section 57 of the Stamp Act. This judgment also refers to a Full Bench decision of the Lahore High Court in Feroze Shah v. Income‑tax Commissioner of Punjab (A I R 1931 Lah. 138). The Supreme Court of India held that the view taken by the Full Bench of the Lahore High Court was not supported by several other High Courts and the Privy Council. This judgment also referred with approval to another judgment given by a Full Bench of the Patna High Court in Harihar Gir v. Commissioner of Income‑tax, Bihar and Orissa (A I R 1941 Pat. 225), where the Bench held that no appeal lay to His Majesty in Council under section.31 of the Letters Patent of the Patna High Court from an order of the High Court dismissing an application under section 66 (3), Income‑tax Act, a provision analogous to section 21 of the Bihar Sales Tax Act. In Pahlal Rai & Co. v. Commissioner of Income‑tax, Punjab (A I R 1952 Pb. 299), the Bench of the Punjab High Court held that an order of the High Court under section 66 (2), Income‑tax Act, dismissing application for directing Appellate Tribunal of Income‑tax to state a case, was not a judgment, decree or final order, and no leave to appeal against such order to the Supreme Court could be granted.

19. It would thus appear that the judgment of their Lordships of the Privy Council in Tana Iron and Steel Co. Ltd., v. The Chief Revenue Authority of Bombay (A I R 1923 P C 148), would still govern the case. There has been no instance in which an appeal has been taken against a judgment delivered by a High Court under, section 59 of the Stamp Act. We do not think there is any necessity to depart from this established practice, and we dismiss the petition accordingly. A. H. Petition dismissed.