TMI Blog1979 (8) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... a reference to the High Court. This application was rejected and later a petition was filed in this court. It was the direction given by this court referred to above that has caused the Tribunal to make this reference to this court. At the time of assessment, the ITO had started penalty proceedings under s. 271(1)(c) of the I.T. Act, which were referred to the IAC, Indore Range" Indore, for disposal as required under s. 274(2). The IAC considered two groups of the assessee's income to be concealed income. The group consisted of five items relating to salary, bonus, commission and bhav farak totalling in all to Rs. 29,762, and the B group consisted of the profit of Rs. 16,498, added on account of benami business of M/s. Dyestuffs and Insecticides. The IAC held the assessee guilty of concealment of income in respect of both the groups and imposed a penalty of Rs. 18,000. The assessee went up in appeal to the Tribunal and the Tribunal held that the assessee was not guilty of concealment in respect of items in group A, but took the view that penalty was clearly attracted in respect of the amount of Rs. 16,498 in group B. The appellate order mentioned the reasons for this conclusion. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in favour of the assessee. Learned counsel for the department on the other hand contended that the finding in the assessment proceedings is that it was a benami created by the assessee himself, to divert the income and if ultimately it is found that the income earned in the business shown to be in the name of M/s. Dyestuffs and Insecticides is the income of the assessee in the circumstances of the case, it is apparent that the assessee had attempted to conceal his income with the necessary intent and, therefore, it could not be contended that it was a debatable question and the necessary intent could not be imputed. However, learned counsel for the department contended that the reference deserves to be rejected on the preliminary ground itself. It is not in dispute that the appellate order of the Tribunal does not show that this question which has been referred to us was at issue between the parties at the time of hearing of the appeal. It is also not alleged that it was a question raised by the assessee before the Appellate Tribunal at the time of hearing of the appeal. It, therefore, cannot be disputed that this question does not arise out of the order of the Tribunal. Whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a decision by the court. It is the question of law referred under section 66(1) that calls for decision under section 66(5) and it is that that constitutes the pivotal point on which the jurisdiction of the court hinges. The statement of the case is material only as furnishing the facts for the purpose of enabling the court to decide the question referred. It has been repeatedly laid down by the Privy Council that the Indian Act is not in pari materia with the British statute and that it will not be safe to construe it in the light of English decisions : vide Commissioner of Income-tax v. Shaw Wallace Co. [1932] 2 Comp Cas 276 (PC). In view of the difference between section 66(1) and the corresponding provision in the British statute, we consider that no useful purpose will be served by referring to the English decisions for interpreting section 66. But the main contention still remains that the language of section 66(1) is wide enough to admit of questions of law which arise on the facts found by the. Tribunal and that there is no justification for cutting down its amplitude by importing in effect words into it which are not there. There is considerable force in this argument. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 66(1). That has been held by this court in New Jehangir Vakil Mills Ltd. v. Commissioner of Income-tax [1959] 37 ITR 11 (SC) and in Zoraster Co. v. Commissioner of Income-tax [1960] 40 ITR 552 (SC). Moreover, the power of the court to issue direction to the Tribunal under section 66(2) is, 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 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bound to answer a question merely because it is raised and referred. It is well settled that the High Court may decline to answer a question of fact or a question of law which is purely academic, or has no bearing on the dispute between the parties or though referred by the Tribunal does not arise out of its order. The High Court may also decline to answer a question arising out of the order of the Tribunal, if it is unnecessary or irrelevant or is not calculated to dispose of the real issue between the taxpayer and the department. If the power of the High Court to refuse to answer questions other than those which are questions of law' directly related to the dispute between the taxpayer and the department, and which, when answered, would determine qua that question the dispute, be granted, we fail to see any ground for restricting that power when by an erroneous order the High Court has directed the Tribunal to state a case on a question which did not arise out of the order of the Tribunal. We are unable, therefore, to hold that at the hearing of a reference pursuant to an order calling upon the Tribunal to state a case, the High Court must proceed to answer the question without ..... X X X X Extracts X X X X X X X X Extracts X X X X
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