TMI Blog1955 (10) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... l. An application was made to the Appellate Tribunal under section 66(1) of the Income-tax Act with regard to the assessment of the petitioner company, the Income-tax authorities having held that in respect of the petitioner company's chargeable accounting period 1943 the Excess Profits Tax Officer was not bound to take into consideration the value of the goodwill in computing the average capital for the purpose of section 6(1) of the Excess Profits Tax Act. As the Tribunal rejected the application the petitioner company then approached the High Court under section 66(2) and we directed the Tribunal to state a case, and the question of law on which we asked the Tribunal to state a case was whether in the computation of capital employed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate and distinct powers and they should not be confused and when the High Court disposes of a reference and exercises its advisory jurisdiction and gives directions to the Tribunal to give effect to its judgment, it is exercising a function which falls under section 66(5) and not under section 33(4), and inasmuch as no reference can arise out of an order passed by the Tribunal under section 66(5) the application of the petitioners was incompetent. Looking to the scheme of the Act, under section 33 the Appellate Tribunal is constituted the appellate authority over the decisions of the Appellate Assistant Commissioner, and under sub-section (4) it is provided: The Appellate Tribunal may, after giving both parties to the appeal an opp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appeal which has already been disposed of under section 33. It is clear that the expression case used in the latter part of sub-section (5) has not the same connotation as the expression used in the earlier part of that sub-section. The case that the High Court hears is the case stated to it under section 66 by the Tribunal. The case that the Appellate Tribunal has to dispose of is the matter before it or the appeal which has lost its finality by reason of section 33(6). Therefore, reading section 33(6) and section 66(5) together, the scheme is fairly clear that when a reference is made to the High Court either under section 66(1) or section 66(2) the decision of the Appellate Tribunal cannot be looked upon as final; in other words ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under no obligation to give an opportunity to both the parties to be heard? It is clear therefore that the appeal has not been finally disposed of whenever there is a reference to the High Court. The shape that the appeal would ultimately take and the decision that the Appellate Tribunal would ultimately give would entirely depend upon the view taken by the High Court. The High Court may accept the view of the law taken by the Tribunal in which case the decision of the Appellate Tribunal would stand. The High Court may reverse the decision of the Appellate Tribunal on a question of law, in which case the appeal would have to be disposed of in accordance with the opinion of the High Court. Therefore, in all cases where section 66 comes into ..... X X X X Extracts X X X X X X X X Extracts X X X X
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