TMI Blog1970 (11) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground that no reference application under section 66 was filed by the petitioner before the Tribunal. Sri Uttam Reddy, the learned counsel for the petitioner, contended that the preliminary objection is not sustainable as the assessee or the Commissioner of Income-tax is entitled to prefer an application under section 66(2) if any application has been filed by either of the parties before the Tribunal under section 66(1) of the Act. In order to appreciate the respective contentions relating to the maintainability or otherwise of this reference application, it is relevant and necessary to state briefly the material facts. Messrs. Krishna Mining Co., Gudur (hereinafter referred to as " the assessee "), is a firm carrying on mica business at Gudur. For the assessment year 1958-59 corresponding to the accounting year ending with March 31, 1958, the Income-tax Officer, rejecting the book results, made an addition of Rs. 1,20,000 towards the deficit yield of cut mica, to the income returned by the assessee. He sustained an addition of Rs. 60,000 towards unexplained cash credits and a sum of Rs. 1,350 towards the interest paid thereon as income from " other sources ". On appeal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in sixty days of the date of the service, requiring the Tribunal to refer to the High Court any question of law arising out of its order. The aggrieved party has to request the Tribunal, placing the question sought to be answered by the High Court, to refer it, and the application must be signed by the applicant or his authorised agent. The Tribunal has a statutory duty and obligation to state the case for the opinion of the High Court on the questions framed by it if, in its opinion, those questions do arise out of its order passed under section 33(4) of the Act. No discretion or choice is left to the Tribunal to refuse to draw up a statement of the case and refer the questions to the High Court if the questions of law really arise out of its order. If the Tribunal refuses to state a case on the ground that no question of law does arise out of its order, the provisions of sub-section (2) of section 66 would come into play. Section 66(2) reads : " If on any application being made under sub-section (1) the Appellate Tribunal refuses to state the case on the ground that no question of law arises, the assessee or the Commissioner, as the case may be, may, within six months from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court in respect of some questions on the ground that they are not questions of law or such questions of law do not arise out of its order and agrees to refer only the other questions, the aggrieved applicant may invoke the jurisdiction of this court and file an application under section 66(2) in so far as those question in respect of which the Tribunal refused to state the case, are concerned. On a combined reading of the provisions of sub-sections (1) and (2) of section 66, we are of the opinion that it is only the assessee or the Commissioner of Income-tax, whoever has preferred an application under section 66(1) and was aggrieved by the refusal of the Income-tax Appellate Tribunal to state a case for the opinion of the High Court on the question of law that arises out of its order, but not others who did not prefer any application under section 66(1), that can approach and invoke the jurisdiction of this court under section 66(2). Such an interpretation gains strength from the use of the expression " the assessee or the Commissioner, as the case may be " in section 66(2). This court, under section 66(2), is empowered in appropriate cases where the requisite conditions specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, as has often been pointed out, in the nature of a mandamus and it is well-settled that no mandamus will be issued unless the applicant had made a distinct demand on the appropriate authorities for the very reliefs which he seeks to enforce by mandamus and that had been refused. Thus, the power of the court to direct a reference under section 66(2) is subject to two limitations--the question must be one which the Tribunal was bound to refer under section 66(1) and the applicant must have required the Tribunal to refer it. R(T) is the form prescribed under rule 22A for an application under section 66(1), and that shows that the applicant must set out the questions which he desires the Tribunal to refer and that further, those questions must arise out of the order of the Tribunal. It is, therefore, clear that under section 66(2), the court cannot direct the Tribunal to refer a question unless it is one which arises out of the order of the Tribunal and was specified by the applicant in his application under section 66(1). Now, if we are to hold that the court can allow a new question to be raised on the reference, that would in effect give the applicant a right which is denied to hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Income-tax and answered by this court in R.C. No. 3/1968 in favour of the department. We are not concerned in this application with the result of the R.C. No. 3/1968, nor is it material or relevant for the decisions of the points raised in this petition. The assessee could have filed a regular independent reference application under section 66(1) in respect of the present question if it was really aggrieved by the decision of the Tribunal. In the circumstances, it has to be inferred that the assessee was satisfied with the addition of Rs. 61,350 sustained by the Tribunal towards the deficit yield of cut mica. If the petitioner feels aggrieved or prejudiced by the opinion expressed by this court on the question raised in R.C. No, 3/1968, it is the petitioner but none else that should be blamed for the same as it failed to avail the statutory remedy provided under section 66(1). For all these reasons, we must uphold the preliminary objection raised by the learned standing counsel for the revenue that this application by the assessee under section 66(2) of the Act without preferring an application under section 66(1) and obtaining a refusal thereon, is not maintainable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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