TMI Blog1966 (9) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... nce to the High Court was sought was a limited question and the Tribunal declined to refer the question because it did not arise out of its order, the question not having been raised before or decided by the Tribunal. The question sought to be raised before the High Court in a reference under section 66(2) was not an aspect of a question raised before the Tribunal : it was a new question which was never raised before the Tribunal. The High Court was, therefore, right in rejecting the prayer for an order under section 66(2) of the Act. Appeal dismissed. - - - - - Dated:- 14-9-1966 - Judge(s) : V. RAMASWAMY., J. C. SHAH., V. BHARGAVA JUDGMENT The judgment of the court was delivered by SHAH J.--Messrs. T. D. Kumar Bros. (Private) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of capital and cannot be set off against the company's profits. The Tribunal at the same time observed that they did not propose to express any opinion on the genuineness or otherwise of the transaction relating to the purchase and sale of the shares of the Trust. During the pendency of proceedings for assessment of income, the Income-tax Officer, Companies District IV, Calcutta, initiated proceedings under section 28(1)(c) of the Indian Income-tax Act, 1922, and passed an order on September 29, 1955, imposing upon the company a penalty of Rs. 42,000. In the view of the Income-tax Officer there was " overwhelming proof that the company had neither purchased nor sold the shares of the trust. " The Appellate Assistant Commissioner in ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealed the particulars of its income or had deliberately furnished inaccurate particulars of such income so as to attract liability to pay penalty provided for in section 28(1)(c) of the Income-tax Act, and that no question of law arose out of their order. A petition under section 66(2) of the Income-tax Act, 1922, was lodged by the company before the High Court of Judicature at Calcutta. It was argued in that proceeding that, even if the facts found by the Tribunal be correct, section 28(1)(c) of the Indian Income-tax Act, 1922, was not attracted, regard being had to " the proper meaning of the word 'income' in that sub-clause. " The High Court rejected the application observing that the question sought to be raised before them did not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust is not " income " within the meaning of section 28(1)(c) of the Income-tax Act. But the Tribunal was never asked to refer that question to the High Court: nor was the High Court requested to call upon the Tribunal to state a case on that question. On that ground alone the argument raised by the company was liable to be rejected. Again it is clear that the question whether having regard to the decision of the Tribunal in the assessment proceedings an order imposing penalty under section 28(1)(c) of the Act could be made was never raised or argued before the Tribunal, and the Tribunal did not decide that question. The only contention raised before the Tribunal was that the transaction of sale and purchase in the shares of the trust bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question which had been argued before the Tribunal. The question on which a reference to the High Court was sought was a limited question and the Tribunal declined to refer the question because it did not arise out of its order, the question not having been raised before or decided by the Tribunal. The question sought to be raised before the High Court in a reference under section 66(2) was not an aspect of a question raised before the Tribunal : it was a new question which was never raised before the Tribunal. The High Court was, therefore, right in rejecting the prayer for an order under section 66(2) of the Act. The appeal therefore fails and is dismissed with costs. Appeal dismissed. - - TaxTMI - TMITax - Income Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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