JUDGMENT Collister and Bajpai, JJ. - This is a reference u/s 66(2) of the Indian Income Tax Act. 2. The Assessee was an advocate of the High Court. In 1932, he was appointed as an Acting Judge and he took his seat on the 19th April of that year. He remained on the Bench until the 27th July, of that same year, when the High Court rose for the vacation. On the 17th October, 1932 he was appointed an Additional Judge and on the 17th July, 1933 he was confirmed as a Puisne Judge. The notification of his appointment was dated the 20th July, 1933 and was published in the U.P. Gazette dated the 22nd July, 1933 During the financial year 1932-33 the Assessee practised as an advocate from the 1st to the 18th April and again from the 28th July to the 16th October 1932 For the year 1932-33 he was assessed u/s 23(1) of the Act on the 22nd September, 1932 upon his total income for the previous year. The total income was Rs. 89,865 of which Rs. 88,007 represented his professional earnings. For the year 1933-34 he was again assessed u/s 23(1) of the Act on the 15th November, 1933, on the total income of the previous year, which amounted to Rs. 53 218-- 3. The details were as below: Rs. Salary ... 27,917 Professional earnings ... 21,940 Interest on securities ... 1,650 Other interest ... 1,711 Total 53,218 4. The Assessee did not appeal from either of these two assessments. 5. On the 28th April 1939, the Assessee preferred an application for relief u/s 25(3) of the Act in respect to the assessment of 1932-33. Paragraph 3 of that application is in the following terms: That during the assessment year 1932-33, the Petitioner practised the profession of law, as stated above, partly in April and partly between the months of July and the 16th of October, 1932, after which date your Petitioner discontinued the profession and that during this period your Petitioners' total income from the profession was Rs. 21,940 and his income as a Judge of the High Court was Rs. 27,917 for which the Petitioner was assessed at source. 6. From paragraph 5 to the end the application reads as follows: 5. 21,940 and his income as a Judge of the High Court was Rs. 27,917 for which the Petitioner was assessed at source. 6. From paragraph 5 to the end the application reads as follows: 5. That the Petitioner having discontinued the profession in October, 1932, no tax was payable by him in respect of the income for the period between the end of the previous year and the date of such discontinuance and the income tax Department should not have assessed the Petitioner for that period u/s 25(8) of the income tax Act, 1922, but in point of fact the Petitioner was so assessed and he paid the amount demanded from him on the assumption that he was rightly assessed. 6. That the Petitioner has only recently discovered that the assessment on him was wrongly made by the income tax Department and if the Petitioner had discovered this at that time, he would have laid claim to a refund u/s 25(3) of the Income tax Act, 1922. 7. That the Petitioner submits that in 1932-33 instead of being assessed in respect of his professional income of Rs. 88,007 he should have b assessed on Rs. 21,940 and the difference between these two figures should be returned to the Petitioners. 8. That your Petitioner submits that in fairness this is a proper case for the exercise of your power of review u/s 33 of the income tax Act, 1922 and that you have the power to revise the assessment made by the subordinate authority after consulting the Central Board of Revenue (vide paragraph 104, p. 268 of the income tax Manual, 1937). Wherefore your Petitioner prays that you may be pleased in the exercise of your power u/s 33 of the income tax Act, 1922, to call for the record of the Petitioner's assessment by the subordinate authority and order the (sic) the Petitioner of such amount as he may be found entitled to. 7. Wherefore your Petitioner prays that you may be pleased in the exercise of your power u/s 33 of the income tax Act, 1922, to call for the record of the Petitioner's assessment by the subordinate authority and order the (sic) the Petitioner of such amount as he may be found entitled to. 7. Section 25(3) of the Act reads as follows: Where any business, profession or vocation on which tax was at any time charged under the provisions of the Indian income tax Act, 1918, is discontinued, no tax shall be payable in respect of the income, profits and gains of the period between the end of the previous year and the date of such discontinuance and the Assessee may further claim that the income, profits and gains of the previous year shall be deemed to have been the income, profits and gains of the said period. Where any such claim is made, an assessment shall be made on the basis of the income, profits and gains of the said period and if an amount of tax has already been paid in respect of the income, profits and gains of the previous year exceeding the amount payable on the basis of such assessment, a refund shall be I given of the difference. 8. By a letter dated the 7th June, 1939, the Commissioner of Income tax. Central and United Provinces, referred the matter to the Central Board of Revenue, The Commissioner's view was that relief should not be granted. He says: The claim of the Petitioner is extremely belated and he should have put in his claim for the benefits of Section 25(3) during the course of the proceedings for the assessment year 1933-34. In fact according to paragraph 96 of the income tax Manual (7th Edn.) a claim to be assessed u/s 28(3) could only be admitted, in this particular case, if it was made not later than the end of the calendar year 1933. 9. The rule to which the Commissioner refers is admittedly a departmental rule, which can in no way affect a legal claim. 10. 9. The rule to which the Commissioner refers is admittedly a departmental rule, which can in no way affect a legal claim. 10. The Commissioner's letter then goes on to say: The Petitioner, however, is a Judge of the Allahabad High Court who sits on the Bench to hear income tax references and as he obviously considers that he has a fair claim on the department, I do not think it would be advisable to refuse his request. 11. This remark is open to the interpretation that, if the application were refused, the Assessee might be expected in future to pass unfavourable orders on references by the income tax authorities. If this is what the Commissioner meant, his observation would amount to a gross contempt of Court and we should have to take action upon it; but the learned Advocate-General explains the observation as meaning that since the Assessee was one of the Judges hearing income tax references, his opinion was entitled to respect and should be deferred to. If this is what Mr. Mullan--the then Commissioner of Income tax--meant, he expressed his meaning in singularly unhappy language. 12. By a letter dated the 28th July, 1939, the Board regretted that it was unable to authorise the Commissioner to exercise his powers of revision in favour of the Assessee. 13. The matter again came before the Commissioner and by his order dated 29th August, 1939, he declined to exercise his powers of revision u/s 33 of the Act. The Commissioner at this time was Khan Bahadur M.A.G. Ansari and he says: It is obvious from the wordings of Section 25(3) that these claims could only be made in the course of the assessment for 1933-34 The Assessee could claim that the income which he had earned during July to October, 1932, from profession should not be assessed in 1933-34 at all and could further claim that the profits or gains of the previous year were to be deemed to have been the income, profits or gains of the said period. In fact the income tax Officer himself was bound to exclude this income from the assessment of 1933-34, if he only could be aware of the discontinuance of the profession, but it appears that he had no idea of the discontinuance. In fact the income tax Officer himself was bound to exclude this income from the assessment of 1933-34, if he only could be aware of the discontinuance of the profession, but it appears that he had no idea of the discontinuance. The application u/s 33 has, however, been made practically six years after the assessments in question were disposed of and although no statutory period for such applications has been laid down in the Act, they are expected to be made within a reasonable time from the date the orders complained against are passed and instructions have accordingly been issued by the Central Board of Revenue to the effect that 'if a Commissioner of income tax desires to exercise his powers of revision in any case where more than a year has elapsed since the passing of the last order by the subordinate authority, he should not do so without first consulting the Central Board of Revenue'--page 268, paragraph 104, income tax Manual (7th Edn.) In view of the above provision, my predecessor consulted the Central Board of Revenue if the application u/s 33 could be entertained, but the Board has replied to the effect that it is unable to authorise the Commissioner to exercise his powers of revision in this case. I am, therefore, unable to exercise my powers of revision u/s 33 of the income tax Act. 14. On the 18th September, 1939, the Assessee prayed for a reference to the High Court u/s 66(2) of the Act. After that he apparently received a letter dated 12th January, 1940, from the Commissioner and on the 18th January he sent a reply to that letter. Paragraph 3 of the reply reads as follows: In paragraph 2 of your letter you refer to Section 25(5) of the Act and observe that as my claim for a refund u/s 25(3) was made after 1st April, 1939, it is time-barred u/s 25(5) I am advised, however, that Section 25(5) cannot affect my rights, which had accrued before the Amending Act of 1939 was passed. You have also drawn my attention to the 1st proviso to Section 50 of the Act. I am also advised that the proviso to Section 50, which is in Chapter VII of the Act, has no application to the circumstances of the present case. 15. You have also drawn my attention to the 1st proviso to Section 50 of the Act. I am also advised that the proviso to Section 50, which is in Chapter VII of the Act, has no application to the circumstances of the present case. 15. On the 16th March, 1940, the Assessee again wrote to the Commissioner explaining the delay in applying for relief u/s 25(3) of the Act. In that letter he said: It was towards the end of January or the beginning of February 1939, that learnt from the Hon'ble Mr. Justice Mohammad Ismail that on account of the discontinuance of the profession by him by reason of his appointment to a seat on the Bench he was to be allowed by your department a refund of the income tax paid by him. I then considered over my own case and got into touch with your income tax Officer at Allahabad. During a personal interview I explained to him the whole case and said that I was entitled to a refund of the income tax paid by me as I had been appointed a Judge of the High Court and had discontinued my profession. I made this claim in March, 1939, that is before the new Act came into force, while admitting the validity of my claim, the income tax Officer expressed his inability to refund the amount and said that I must make a proper application for review to the income tax Commissioner. 2. Accordingly I made an application for review in April, 1939. I therefore submit that the claim having been made to the income tax Officer at Allahabad in March, 1939, no question of limitation u/s 25(3) arises; but even if the claim had not been made by me in March 1939, I am advised and urge accordingly that no limitation can possibly apply to an application for review u/s 33 which practically amounted to asking the income tax department to undo the wrong which it had done. 16. 16. On 6th May, 1940, the Assessee again wrote to the Commissioner and referred to the latter's assumption that a claim for relief was made for the first time in April 1939 and that upon this assumption his claim was time-barred under the Amending Act of 1939--which came into force on the 1st April 1939--and the Assessee said: I am advised that that proposition is not legally correct and the amended Act, or to be more precise paragraphs 4 and 5 of Section 25, which have been added to the income tax Act for the first time in 1939, can only apply to assessments made after the passing of the Amending Act of 1939 and cannot apply to assessments made previously, even though claims for relief u/s 25(3) may be made in regard to such assessments after the passing of the said Amending Act. This aspect of the matter also should be clearly brought out in the statement of the case and a clear question formulated thereon for the consideration of the Hon'ble Court. 17. On the 31st July, 1940, the Commissioner of Income tax--Mr. W.R. Wall--made this reference to the High Court. 18. Before considering the questions of law which have been referred to us we may mention a concession which has been made before us by the Advocate-General and which indeed was made by Mr. Ansari in his order of 29th August, 1939. It is conceded that the Assessee was overcharged, that he had a perfectly good claim on merits and that the relief now sought for could have been granted by the income tax Officer if he had been aware of the fact that the Assessee had discontinued his profession as an advocate. The equities are thus with the Assessee; but the Advocate-General contends that the income tax Officer was totally unaware of the discontinuance of practice and that it was the duty of the Assessee to apply during the assessment year 1933-34. 19. The Commissioner has referred to us a preliminary question of law and also three other questions of law which will arise if the preliminary question is answered in the affirmative. The preliminary question is as follows: Whether the order of the Commissioner, dated the 29th August, 1939, u/s 33 of the Act is an order prejudicial to the Assessee within the meaning of Section 66(2) of the Act? 20. The preliminary question is as follows: Whether the order of the Commissioner, dated the 29th August, 1939, u/s 33 of the Act is an order prejudicial to the Assessee within the meaning of Section 66(2) of the Act? 20. Section 33 of the Act provides: 33(1) The Commissioner may of his own motion call for the record of any proceeding under this Act which has been taken by any authority subordinate to him or by himself when exercising the power of an Assistant Commissioner under Sub-section (4) of Section 5. (2) On receipt of the record the Commissioner may make such enquiry or cause such enquiry to be made and subject to the provisions of this Act, may pass such order thereon as he thinks fit: Provided that he shall not pass any order prejudicial to an Assessee without hearing him or giving him a reasonable opportunity of being heard. 21. The section does not mention the right of an Assessee to move the Commissioner to take action, but the Assessee undoubtedly has the right of calling the attention of the Commissioner to a prejudicial order and of asking that action be taken. 22. The proviso to this section means that the Commissioner shall not put the Assessee in a worse position than he already is without giving him an opportunity of being heard. 23. Section 66(2) of the Act provides as follows: Within 60 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 or of a decision by a Board of Referees u/s 33-A the Assessee in respect of whom the order or decision was passed may, by application accompanied by a fee of one hundred rupees or such lesser sum as may be prescribed, require the Commissioner to refer to the High Court any question of law arising out of such order or decision and the Commissioner shall, within 60 days of the receipt of such application, draw up a statement of the case and refer it with his own opinion thereon I to the High Court. 24. 24. There are two provisos to this sub-section, the first of which is that: reference shall lie from an order u/s 33 only on a question of law arising out of that order itself and not on a question of law arising out of a previous order u/s 31 or Section 32, revised by the order u/s 33. 25. In the present case the second part of this proviso has no application inasmuch as there is no question of law before us arising out of a previous order u/s 31 or Section 32, revised by the order u/s 33. What we have to decide is whether the order of the Commissioner dated 23rd August, 1939, u/s 33 was or was not an order "otherwise prejudicial" to the Assessee. 26. In Central India Spinning, Weaving and Manufacturing Company Ltd. v. Commissioner of income tax, C.P. and U.P. 5 Income Tax Reports 267 a Bench of the Nagpur High Court following the decision of a Bench of three Judges of the Madras High Court in Venkatachalam Chettiar v. Commissioner of income tax, Madras 3 Income Tax Reports 55, hell that where the Commissioner of income tax, acting u/s 33, refuses to review the order of an Assistant Commissioner, the position of the Assessee not being altered as a consequence, the Assessee is not prejudiced within the meaning of Section 66(2) and an application for reference is incompetent. The decision in Venkatachalam Chettiar's case 3 Income Tax Reports 55 was, however overruled by a Full Bench of rive Judges in Voora Sreeramulu Chetty v. Commissioner of income tax Madras 7 Income Tax Reports 263 and it is, therefore, no longer good law so far as Madras is concerned. In Venkatachalam Chettiar's case the Assessee applied to the income tax Officer for a refund of income tax u/s 48 of the Act, but his application was refused. The Petitioner then filed an application asking the Commissioner to revise the order of the income tax Officer u/s 33; but the Commissioner, having heard the application, declined to interfere. The Petitioner then required the Commissioner to refer the matter to the High Court u/s 66(2) of the Act; but the Commissioner dismissed this application on the ground that it was incompetent. His reason was that his order u/s 33 was not an order enhancing the assessment or otherwise prejudicial to the Applicant. The Petitioner then required the Commissioner to refer the matter to the High Court u/s 66(2) of the Act; but the Commissioner dismissed this application on the ground that it was incompetent. His reason was that his order u/s 33 was not an order enhancing the assessment or otherwise prejudicial to the Applicant. In respect to this view of the matter Beasley C.J. observed: 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, that is the date of the Commissioner's order was altered by that order to one of prejudice to him. 27. In the five Judges case Leach C.J., after citing the above observations, says at page 266: With great respect I am unable to accept this interpretation. It means that the Commissioner's order must be more prejudicial than the order complained of before it can come within the purview of Section 66(2) The Section does not say so. All that it contemplates is a prejudicial order. It seems to me that if an order of the income tax, Officer is prejudicial, an order which confirms it or rejects an application asking that it be revised is also prejudicial. It could not be said that a decree of an appellate Court dismissing an appeal from a Court of first instance is not prejudicial to the Appellant. It is just as prejudicial as the original decree. There is no difference in this respect between a dismissal of an appeal and the dismissal of an application for revision when the law permits such an application to be made. 28. The learned Chief Justice then considers the first proviso to Section 66(2) and says: Mr. Patanjali Sastri has suggested that the proviso only relates to orders under Sections 31 and 32, revised u/s 33. In other words, he asks the Court to read the second part of the proviso as governing the first part. 28. The learned Chief Justice then considers the first proviso to Section 66(2) and says: Mr. Patanjali Sastri has suggested that the proviso only relates to orders under Sections 31 and 32, revised u/s 33. In other words, he asks the Court to read the second part of the proviso as governing the first part. I do not read it in this way. I consider the effect of the proviso to be this. A reference shall lie only when a question of law arises out of the order passed u/s 33, but if the matter is one which relates to an order u/s 31 or Section 32 a question of law which arose out of the previous order alone cannot be referred. 29. We are in full agreement with this interpretation of the proviso. 30. At page 267 the learned Chief Justice refers to the Nagpur decision which we have already mentioned and says: The Court accepted Venkatachalam Chettiar's case without discussing it and therefore its judgment does not carry the matter further. 31. The other four learned Judges concurred with the judgment of Leach C. J. 32. This decision was referred to by a Full Bench of the Rangoon High Court in Amulakharai Chhotalal v. Commissioner of income tax, Burma 8 Income Tax Reports 382. The judgment was delivered by Roberts C.J. and was concurred in by the other two learned Judges. At cage 402 the learned Chief Justice states the facts as follows: The Assessee had been the subject of an assessment which, upon the face of it, was a perfectly good one. It had been made year after year. After the death of a man named G.D. Paul the Assessee, who had taken no notice of the income tax authorities demands for payment, suddenly came forward and declared that the assessment had been made without his knowledge and that G. Paul had been impersonating him. But this was found as a fact against him by the Commissioner. 33. At page 403 the Chief Justice says: In my opinion, this was clearly not an order to the prejudice of the Assessee. It in no way altered the position as it existed before the Commissioner chose to review the case; and therefore looking at the provisions of Section 66(2) of the Act there is no ground for a reference to be made in the events that have happened. 34. It in no way altered the position as it existed before the Commissioner chose to review the case; and therefore looking at the provisions of Section 66(2) of the Act there is no ground for a reference to be made in the events that have happened. 34. Further on he refers to the case of Voora Sreeramulu Chetty v. Commissioner of income tax Madras 3 Income Tax Reports 55 and observes: No doubt the decision of the High Court of Madras to which we have been referred makes it clear that there may be an order which, in confirming a prejudicial order, is in itself prejudicial, but that is not the case here, for nothing has been done to alter an order which it is not proved was prejudicial in any sense of the word, 35. Thus in the Rangoon case the order was not prejudicial to the Assessee; in the Madras case it was. 36. The learned Advocate-General refers us to the case of Indrachand Kagriwal v. Commissioner of income tax Behar and Orissa 7 Income Tax Reports 506, which appears to afford some support to the view taken by the income tax authorities; but the question of "prejudice" was dealt with in a few lines by the learned Judges of the Patna High Court and no authorities were referred to. 37. In Nanhe Mal Janki Nath v. Commissioner of Income tax Lahore 8 Income Tax Reports 437, Dalip Singh J. was inclined to agree with the view taken by the Madras High Court in Voora Sreeramulu Chetty's case 3 Income Tax Reports 55. An argument was addressed to the learned Judges of the High Court at Lahore with a view to show that the above mentioned decision was wrong and at page 439 Dalip Singh J observes: It is unnecessary to decide this point in view of the decision to which we have come on the other point, but I have remarked that the word 'prejudicial' in Section 33 need not have the same meaning as the word 'prejudicial' in Section 66(2). In Section 33 there is no application necessarily before the Commissioner at all. In Section 33 there is no application necessarily before the Commissioner at all. If he does act on his own motion, there is no necessity for him to pass any order at all and therefore when Section 33 says that he cannot pass an order prejudicial to the Assessee without hearing him, the word 'prejudicial' there is obviously used in the narrower sense of a prejudice occasioned to the Assessee by the order of the Commissioner himself. In Section 66(2) the reasoning does not apply because Section 66(2) is dealing with the right of the Assessee to make an application from such an order and therefore, as at present advised, without expressing any final opinion on the point, I am inclined to hold that the decision of the Full Bench of the Madras High Court is correct, but it is unnecessary to decide this point for the proviso to Section 66(2) expressly lays down that a reference from an order u/s 33 lies only on a question of law arising out of that order itself. 38. We have carefully examined the various authorities and we find ourselves in full accord with the view taken by the five learned Judges of the Madras High Court in Voora Sreeramulu Chetty's case 3 Income Tax Reports 55. We agree with the interpretation which that Court placed on the words "otherwise prejudicial" and with the reasoning upon which their view is based. In the present case the Assessee had admittedly been overcharged; he had a perfectly good case on merits; another Judge of this Court had obtained relief in similar circumstances; and the Assessee's application for review was disallowed. It therefore appears to us that the order of the Commissioner of Income tax dated 29th August, 1939--whether right or wrong--was an order "otherwise prejudicial" to the Assessee within the meaning of Section 66(2) of the Act. The reference is therefore competent and the preliminary question must be answered in the affirmative. 39. We now approach the three questions of law arising out of the Commissioner's order of 29th August 1939. The first question is: Whether on the materials before the income tax Officer at the time of the assessment for 1938-34, he was in law justified in assessing the Assessee to income tax without giving him relief u/s 25(3) of the Act? 40. The first question is: Whether on the materials before the income tax Officer at the time of the assessment for 1938-34, he was in law justified in assessing the Assessee to income tax without giving him relief u/s 25(3) of the Act? 40. Section 25(3) provides as follows: Where any business, profession or vocation on which tax was at any time charged under the provisions of the Indian income tax Act, 1918, is discontinued, no tax shall be payable in respect of the income, profits and gains of the period between the end of the previous year and the date of such discontinuance and the Assessee may further claim that the income, profits and gains of the previous year shall be deemed to have been the income, profits and gains of the said period. Where any such claim is made, an assessment shall be made on the basis of the income, profits and gains of the said period and if an amount of tax has already been paid in respect of the income, profits and gains of the previous year exceeding the amount payable on the basis of such assessment, a refund shall be given of the difference. 41. The words "no tax shall be payable" impose a duty on the income tax Officer and this is conceded; but it is contended that the income tax Officer was in no way responsible for the non-performance of this duty for the reason that he had no knowledge of the fact that the Assessee had discontinued his profession. In his order of 29th August 1939 Mr. Ansari has stated that the income tax Officer was bound to exclude this income from the assessment of 1933-34 if he only could be aware of the discontinuance of the profession, but it appears that he had no idea of the discontinuance. 42. The appointment of the Assessee as a Puisne Judge was notified, as we have already said, in the Gazette of 22nd July 1933, that is to say four months before the order of assessment for the year 1933-34. 42. The appointment of the Assessee as a Puisne Judge was notified, as we have already said, in the Gazette of 22nd July 1933, that is to say four months before the order of assessment for the year 1933-34. It may be said with reason that the income tax authorities cannot be expected to acquaint themselves with every appointment notified in the Gazette; but there are other circumstances which indicate that the income tax Officer was aware of the fact that the Assessee had become a Judge of the High Court Curiously enough there is no copy on the record of the notice asking for a return, but there is an acknowledgment slip (No. 183) which shows that the notice to submit a return was addressed to "the Hon'ble Mr. Justice Iqbal Ahmad". The notice was served upon the Assessee on the 4th April 1933, at which date he was an Additional Judge of this Court. In the assessment form of 15th November, 1933 the name of the Assessee is shown as "the Hon'ble Mr. Justice Iqbal Ahmad." By that time the Assessee had become a Puisne Judge of the Court. Thus the income tax Officer had I materials before him which should have put him on inquiry as to whether the Assessee was entitled to relief u/s 25(3) of the Act. This question must be answered in the negative. 43. The next question referred to us is as follows: Whether the Assessee's claim for relief u/s 25(3) of the Act in respect of his assessment for 1933-34, made in the circumstances stated above, is barred by limitation? 44. In the Amending Act of 1939, which came into force on the 1st April 1939, Sub-section (5) was added to Section 25. It provides as follows: No claim to the relief afforded under Sub-section (3) or Sub-section (4) shall be entertained, unless it is made before the expiry of one year from the date on which the business, profession or vocation was discontinued. 45. The right had accrued to the Assessee before the 1st April, 1939. The application for relief u/s 25(3) was preferred on the 28th April 1939, but it is alleged on behalf of the Assessee that he made a verbal claim at the office of the Income tax Officer in March 1939. 45. The right had accrued to the Assessee before the 1st April, 1939. The application for relief u/s 25(3) was preferred on the 28th April 1939, but it is alleged on behalf of the Assessee that he made a verbal claim at the office of the Income tax Officer in March 1939. In reply to a question referred to him by the Commissioner, the income tax nicer said: Regarding your, inquiry about Justice Iqbal's interview with me some 14 months back, I am unable to give from memory the details desired by you. Justice Iqbal had seen me at the income tax Office, Central Circle, about Section 25(3) affair and I remember I had asked him to make a formal application if he liked. I cannot give any further details from memory. I might have made some note on the file. 46. The Commissioner in his statement of the case says: It may...be taken as established that an interview took place between the Assessee and the income tax Officer on the subject of the former's claim in March 1939, but a formal application for a refund u/s 25(3) was not made till the 28th April 1939, when the Assessee's application u/s 33 was presented to the Commissioner. 47. Thus it is a matter of admission that the Assessee did make a verbal claim in March 1939. It is contended on behalf of the Department that a claim for relief u/s 25(3) of the Act should be in writing; but there is nothing in the Act to justify this contention. The learned Advocate General pleads that, having regard to the scheme of the Act as it appears from Chapter IV, which is headed "Deductions and Assessments" and which contains Sections 18 to 39, it must be held to have been contemplated by the Legislature that any such application should be preferred during the assessment year What the Legislature may have contemplated is a matter of speculation, but a claim for refund of tax wrongly assessed cannot be barred except by statute and there was no such bar before the Amending Act. A bar of limitation cannot be read into the provisions of an Act in which no such bar is expressed The amended sub-section itself goes to show that the Legislature was aware of the absence of any bar of limitation in the existing Act. 48. A bar of limitation cannot be read into the provisions of an Act in which no such bar is expressed The amended sub-section itself goes to show that the Legislature was aware of the absence of any bar of limitation in the existing Act. 48. The Commissioner in his statement of the case says: The question whether the claim was within time if it were assumed to have been made verbally in March 1939 does not arise out of the order u/s 33, as there was no mention of any such claim having been made either in the petition u/s 33 or in the application u/s 66(2). 49. This is true so far as it goes, but the question has been raised for the first time by the Commissioner in his statement of the case. His predecessor in office, when he declined to grant relief u/s 33, did not say that the application of the Assessee was barred by time; he only said that it was not prepared within prescribed time, which is very different from saying that it was barred by a statutory provision. The question of limitation therefore can either not be advanced by the Department at all or, if it can be advanced, it can be met by facts which came to light at the time when the question of a reference to the High Court u/s 66(sic) was being considered by the Commissioner. The interview of the Assessee with the income tax Officer in March 1939 was brought to the notice of the Commissioner when he thought that the application ought to have been presented within a year. Our reply to this question is in the negative. 50. The last question referred to us is: Whether the Commissioner's discretion u/s 33 of the Act can legally be controlled by the Central Board of Revenue; and if so, whether the Central Board of Revenue acted judicially in refusing to authorise the Commissioner to exercise his power of revision in this case? 51. A Commissioner of Income tax has no option but to obey departmental orders of the Central Board of Revenue; but it cannot possibly be said that his discretion can be 'legally' controlled inasmuch as the discretion is vested in him by statute and there is no statutory control of such discretion. 51. A Commissioner of Income tax has no option but to obey departmental orders of the Central Board of Revenue; but it cannot possibly be said that his discretion can be 'legally' controlled inasmuch as the discretion is vested in him by statute and there is no statutory control of such discretion. A Court or an official functioning as a Court must exercise its discretion judicially; but that is the only form of control which is known to the law. This being our view, the second part of the question does not arise. 52. To sum up we answer the preliminary question in the affirmative and the first and second questions of law in the negative. We also answer the first part of the third question of law in the negative. As regards the second part of this question it is unnecessary to return an answer. 53. The Advocate General is entitled to a fee of Rs. 200. The Assessee is entitled to his costs. 54. A copy of this order will be sent under the seal of the Court and the signature of the Registrar to the Commissioner of income tax.