TMI Blog1966 (2) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the assessee and this was upheld by the Appellate Tribunal. The assessee thereupon requested the Tribunal to make a reference to the High Court under section 66(1) of the Income Tax Act (hereinafter referred to as the said Act). The Tribunal thereupon referred the following question under the provision of section 66(1) of the said Act : Whether, on the facts and in the circumstances of the case, the amount of ₹ 2,344 was rightly included as dividend in the total income of the assessee for the assessment year 1949-50 ? On the 2nd December, 1964, the court made an order on the reference and answered the question in the negative, that is to say, in favour of the assessee and against the department. Thereupon, the departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nkar Lall Singha, since deceased, in the Income Tax Reference No. 132 of 1961, and in the cause title of the application for leave to appeal to the Supreme Court. Mr. Burman, appearing for the parties sought to be added, has taken up the point that the application has abated under the provisions of Order 22, ruler 4, of the Civil Procedure Code, and, consequently, no substitution can be made. The question, therefore, arises as to whether the provisions of Order 22 of the Civil Procedure Code apply to the facts and circumstances of this case. Order 22, rule 4, of the Code of Civil Procedure, lays down that where the sole defendant dies and the right to sue survives, the court, upon an application made in that behalf, shall cause the legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all deliver its judgment thereon. Such an order is done in the advisory jurisdiction. This has been made clear in a decision of the Supreme Court, Rajputana Textiles (Agencies) Ltd. v. Commissioner of Income Tax. Nevertheless, the Appellate Tribunal must make an order conformable to such advice. Once, however, a reference is made under section 66(1) of the said Act, the High Court is bound to answer the question. Similarly, where the High Court has made an order directing the Appellate Tribunal to make a reference to it under sub-section (2), the Appellate Tribunal is bound to state a case and the High Court is bound to answer the question asked. Therefore, once a case has been stated to the High Court, there is no question of the matter ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form of procedure to meet the case. In our view there has been no abatement in these proceedings... The same view was taken by the Bench of the Allahabad High Court in Commissioner of Income Tax v. I. D. Varshani of Bahjoi. In that case, a reference was made under section 66(1) of the said Act by the Appellate Tribunal, Allahabad. While the proceedings were pending, the assessee died on 10th December, 1948. No application for substitution was made, but the court directed the Registrar to give notice to the legal representatives of the deceased. The legal representatives appeared and contested the application on the ground that there had been an abatement. Malik C.J. said as follows : So far as we could find, there are no prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Civil Procedure Code are applicable to such applications. Order XXII of the Civil Procedure Code not having been made applicable and there being nothing either in the Income Tax Act or the Rules framed thereunder, it cannot be urged that the reference has abated by reason of the fact that the assessee has died. The same view was taken by a Bench of the Andhra Pradesh High Court in Commissioner of Income Tax v. Gulam Hyderkhan. That was also a reference under section 66(1) of the said Act and the question that arose was as to whether the proceedings abated when the legal representatives of the assessee were not brought on record within 90 days of his death. It was held that it did not. Chandra Reddy C.J. said as follows : The point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable not only to suits, but also to proceedings in revision. I do not think that it is of any benefit to consider the question as to whether the provision of Order XXII applies to other kinds of proceedings. All we are concerned with in this case is to find out whether the provision of Order XXII of the Civil Procedure Code applies to an application in the nature of a reference made to the High Court either under sub-section (1) or sub-section (2) of section 66 of the said Act, and whether, if the assessee died after such a reference has been made to the High Court, it would be justified in stopping the proceedings at any stage before its final termination, simply because one or the other parties before it ceased to be alive. In our o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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