Reference under section 66 was barred where the same legal question had already been concluded in the appellate order.

A reference under section 66 of the Income-tax Act, 1922 did not lie from the Commissioner's refusal to review under section 33 where the assessment had already been finally decided by the Assistant Commissioner. The proviso to section 66 confined reference to a question of law arising from the section 33 order itself, not from an earlier appellate order under section 31. Where the same legal point had already been concluded in both orders, it was not a proper subject for reference. On those facts, the application was not maintainable.

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Issues: Whether a reference lay under section 66 of the Income-tax Act, 1922 from the Commissioner's order under section 33 refusing review, where the assessment had already been finally decided by the Assistant Commissioner, and whether a common question of law decided by both authorities could be referred.

Analysis: The statutory scheme treated the Assistant Commissioner's appellate order as final in such cases, subject only to the limited remedy under section 33 and the right of reference under section 66. A refusal by the Commissioner to review an order under section 33 did not itself prejudice the assessee when the assessment position remained unchanged. The proviso to section 66 confined a reference to a question of law arising out of the order under section 33 itself and not to a question already arising from the earlier appellate order under section 31. Where the same point of law was common to both orders and its determination already concluded the matter against the assessee, it was not a proper subject for reference.

Conclusion: No reference lay on the facts, and the application was not maintainable.

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