THADANI, C. J.: This is an appln. u/s. 28, the Assam Agricultural Income-tax Act, 1939 (Assam Act IX (9) of 1939) arising out of en order of the Member, Assam Board of Agricultural In­come-tax, Assam, dated 11-11-1949, by which he de­clined to state the case to this Ct. (2) It appears that the petnr., did not appeal against the order of the Agricultural Income-tax Officer u/s. 24 of the Act, but made an appln. u/s. 27 of the Assam Agricultural Income-tax Act, 1939, by which he sought to set aside the assess­ment order of the Agricultural Income-tax Officer in respect of the assessment for the year 1943-44. The Comr. of Agricultural Income-tax, Assam, by his order dated 7-9-1949, declined to interfere with the order of the Agricultural Income-tax Officer. Mr. Phukan, Member of the Board of Agricultural Income-tax Board, Assam, declined to state the case to this Ct. on the ground that no point of law arose out of the order made by the Comr., Agricultural Income-tax, Assam, & that in any case, the order passed by the Comr. upon the appln. made u/s. 27 of the Act was not one enhancing the assessment or an order prejudicial to the petnr. within the meaning of S. 28 (2) of the Act. (3) We think the view taken by the Member, Assam Board of Agricultural Income-tax, is in accordance with the view taken by the P. C. in 'Comr. of Income-tax, Punjab, N. W. P. & Delhi Provinces, Lahore v. Tribune Trust, Lahore', (74 IA 306), it is true that Their Lordships of the P. C. in the case to which we have refd., were dealing with a case from the point of view of Ss. 66 (2) & 33, Indian Income-tax Act. Nevertheless we think the interpretation put upon the words "order prejudicial to the petnr" by their Lordships of the P. C. is one which is equally applicable to the relevant words contained in S. 28 (2), Assam Agricultural Income-tax Act. At the bottom of 'p. 317' of the report appear the following ob­servations of their Lordships of the P. C.: "Their Lordships have felt much doubt whether they should refer to the procedural point which arises u/s. 33 & 66, sub-s. (2), i. e., whether, where the Comr. At the bottom of 'p. 317' of the report appear the following ob­servations of their Lordships of the P. C.: "Their Lordships have felt much doubt whether they should refer to the procedural point which arises u/s. 33 & 66, sub-s. (2), i. e., whether, where the Comr. acting u/s. 33, makes an order refusing to set aside an assessment, his order is "otherwise prejudicial" to the assessee, so that the latter can u/s. 66, sub-s. (2), require him to refer any ques­tion of law arising from such order to the H. C. This question was raised before the H. C. at an earlier stage in these proceedings & the decision of that Ct. was not appealed. On the present appeal the learned counsel for the applt. has placed in the forefront of his case the contention that there was no order by the Comr. prejudicial to the assessee out of which any of the questions of law decided by the H. C. could be said to have arisen. From this the conclusion is drawn that there was no jurisdiction in the H. C. to enter­tain the reference. Having decided this case on the merits adversely to the resp. so that, in any case, they must humbly advise His Majesty that this appeal should be allowed. Their Lordships think it is not strictly necessary to decide the point. But having heard argument on it & consd. the conflicting decisions in the Cts. of India, they have come to a clear conclusion which they think it right to express. It appears to them that an order made by the Comr. u/s. 33 can only be said to be prejudicial to the assessee when he is, as a result of it, in a different & worse position than that in which he was placed by the order under review. If the assessee has a complaint against any assessment or order made by a sub­ordinate officer, he has the appropriate & specific remedy which the Act provides. The Comr. may act u/s. 33 with or without the invitation of the assessee; if he does so without invitation, it is clear that, if he does nothing to worsen the position of the assessee, the latter can acquire no right; the review may be a purely departmental matter of which the assessee knows nothing. If, on the other hand, the Comr. may act u/s. 33 with or without the invitation of the assessee; if he does so without invitation, it is clear that, if he does nothing to worsen the position of the assessee, the latter can acquire no right; the review may be a purely departmental matter of which the assessee knows nothing. If, on the other hand, the Comr. acts at the invita­tion of the assessee & again does nothing to worsen his position, there is no justification for giving him a new right of appeal. He has a specific right of appeal against the assessment or order of the subordinate officer which Is subject to its own time limit. That he cannot enlarge by taking a course which is on his part purely voluntary. This view of the section is confirmed by the exception. For it is proper that, where the Comr. does make an order which worsens the position of the assessee, the latter should have a right of appeal, since against that order he has no other right. It is further confirmed by the proviso to S. 66, sub-s. (2), which limits a refer­ence from an order u/s. 33 to cases where the question of law irises out of that order itself & excludes it where the question of law arises out of a previous order u/s. 31 or S. 32 which is revised u/s. 33. In the case in which a reference is permitted, there is a new point of law which could not be otherwise the subject of appeal; in the case in which it is excluded, the point of law was one that could already have been appealed under the appropriate section. For these reasons, their Lordships are of opinion that a reference does not lie from an order u/s. 33 unless that order is prejudicial to the assessee in the sense that he is in a worse position than before the order was made. Applying that principle to the present case, their Lordships are of opinion that as the Comr. did not enhance the assessments made on the resp. or otherwise alter his position for the worse, the reference was from the outset incom­petent. They would only add that the resp. could not make an otherwise incompetent reference competent by adducing a reason for setting aside the assessment which was not available to it at the date of the assessment. did not enhance the assessments made on the resp. or otherwise alter his position for the worse, the reference was from the outset incom­petent. They would only add that the resp. could not make an otherwise incompetent reference competent by adducing a reason for setting aside the assessment which was not available to it at the date of the assessment. (4) This view of their Lordships of the P. C. has been given statutory effect by the insertion of the 2nd proviso to sub-s. (2) of S. 33 A, Indian Income-tax Act, which enacts that an order by the Comr. declining to interfere will not be deemed to be an order prejudicial to the assessee. (5) It was contended by the applt's advocate that as no proviso analogus to the 2nd proviso contained in S. 33 A, Indian Income-tax Act has been enacted in the Assam Agricultural Income-tax' Act, 1939, the observations of their Lordships of the P. C. cannot be said to apply to ascertain the meaning of words used in S. 28 (2) of the Assam Agricultural Income-tax Act. We are un­able to accept this contention. The relevant words in S. 28 (2), Assam Act, namely, "an order u/s. 27 enhancing an assessment or otherwise preju­dicial to him" must bear the same interpretation as has been put upon them by their Lordships "of the P. C. on words used in S. 33-A, Indian In­come-tax Act. (6) The result is that we decline to order the Assam Board of Agricultural Income-tax to state the case to this Ct. The petn. is rejected with costs. (7) RAM LABHAYA, J.: I agree. V.S.B. petition rejected.