Reference against a non-prejudicial appellate order was not maintainable under the amended tax reference scheme.

A writ of mandamus seeking a reference under section 66 was not maintainable where it was directed against the Commissioner's order under section 33 rather than the Assistant Commissioner's assessment order. Under the amended scheme, a reference from the Commissioner's order lay only if that order enhanced the assessment or was otherwise prejudicial to the assessee, and a mere maintenance of the assessment did not meet that test. The assessee's own pleadings and the timing of the reference application confirmed that the challenge was to the Commissioner's order. The argument based on the earlier unamended law also failed because the amended provision governed pending matters and no valid reference from the assessment order had been made in time.

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Issues: Whether the application for a writ of mandamus seeking a reference under section 66 was maintainable when it was directed against the Commissioner's order under section 33 and not against the Assistant Commissioner's assessment order.

Analysis: The application expressly challenged the Commissioner's refusal to state a case after his own order under section 33. Under the amended scheme of section 66, a reference from such an order lay only where the Commissioner's order enhanced the assessment or was otherwise prejudicial to the assessee. The order in question merely maintained the assessment and did not satisfy that condition. The attempt to treat the request as one arising from the Assistant Commissioner's order was inconsistent with the assessee's own pleadings and the timing of the reference application. The objection based on the earlier unamended law also failed, because the amended provision governed pending matters and no valid reference from the Assistant Commissioner's order had been made within time.

Conclusion: The application was not maintainable and was rightly dismissed in favour of the Revenue.

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