TMI Blog1987 (10) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... by the said order, the Revenue preferred an appeal before the Income-tax Appellate Tribunal, Amritsar Bench, Camp at Jaipur, which was dismissed by order dated October 24, 1980 (annexure C). Thereafter, the Revenue preferred an application under section 256(1) of the Income-tax Act, 1961, for making a reference to this court. The Income-tax Appellate Tribunal, Jaipur Bench, Jaipur, by its order dated May 27, 1981 (annexure-D), was of the opinion that the following questions of law do arise: " 1. Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the provisions of section 164(1) itself are not applicable and both the beneficiaries and their shares are known and determinate ? 2. Whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, therefore, the three reference applications were rejected, vide order dated June 30, 1981. It is under these circumstances that the Revenue has moved the present petition under section 256(2) of the Income-tax Act, 1961. The petition was admitted and notices were issued to the assessee. The assessee put in appearance through Mr. N. M. Ranka and Mr. J. K. Singh. We have heard learned counsel for the parties. We thought it proper to call for the original record of the reference application before the Tribunal. The record of the Tribunal has been received and we have perused the same. Learned counsel for the assessee has taken a preliminary objection that this application under section 256(2) of the Income-tax Act is not maintainable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income-tax Act as also rule 45 of the Income-tax Appellate Tribunal Rules. " 256. Statement of case to the High Court.-(1) The assessee or the Commissioner may, within sixty days of the date upon which he is served with notice of an order under section 254, by application in the prescribed form accompanied where the application is made by the assessee by a fee of two hundred rupees require the Appellate Tribunal to refer to the High Court any question of law arising out of such order and, subject to the other provisions contained in this section, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such application, draw up a statement of the case and refer it to the High Court: Provided that the Appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me-tax Act, 1961, critically, it is obvious that the jurisdiction of the High Court can be invoked only if on an application made under sub-section (1) of section 256 of the Act, the Appellate Tribunal refuses to state the case on the ground that no question of law arises, meaning thereby that it is envisaged that the jurisdiction of the High Court can be invoked only when the Appellate Tribunal does not find on merits any question of law arising out of its order, i.e., the finding of the Tribunal that no question of law arises is sine qua non before an application under section 256(2) of the Act can lie to the High Court. Further analysis of section 256 of the Income-tax Act reveals that section 256 provides for reference to the High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein their Lordships have held that the applications under section 256(2) of the Act were not maintainable on a plain reading of sub-section (2) of section 256. This sub-section contemplates an application only in those cases where on an application made under sub-section (1), the Appellate Tribunal has refused to state the case on the ground that no question of law arises. Our attention was also drawn to a decision of the Bombay High Court in CIT v. Bombay Master Printers Association [1984] 146 ITR 339, wherein the High Court declined to answer the question referred to it because no paper books had been supplied which must be treated as inability on the part of the Department to prosecute the reference. Learned counsel for the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of their jurisdiction, causing grave miscarriage of justice." Our attention was also drawn to CIT v. Income-tax Appellate Tribunal [1987] 167 ITR 250, wherein the Madras High Court, while dealing with a writ petition filed by the Revenue, quashed the order of the Tribunal passed under section 256(1) of the Act refusing to refer certain questions of law on the ground that the application under section 256(1) had not been signed by the authorised representative. This authority does not apply to the facts of the present case because the Revenue has not filed any writ petition against the order of the Tribunal, dated June 30, 1981, rejecting the application under section 256(1) on the ground that the directions given by the Tribunal to furn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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