COMMISSIONER OF INCOME TAX Vs. ASIAN TECHS LIMITED

JUDGEMENT

(1.) THESE are in all 18 income-tax references. Out of them, six references of 1992 are by the Revenue and those of 1993 are of the assessee. Except I. T. R. No. 64 of 1993 relating to the assessment year 1979-80, the other income-tax references, both by the assessee as well as by the Revenue, relate to the assessment years 1980-81, 1981-82 and 1982-83. I. T. R. Nos. 71 to 78 are as a result of the orders passed by this court in the concerned original petitions directing the Tribunal to refer the questions raised by the Revenue which were not referred and could be made the subject-matter of I. T. R. Nos. 126 to 131 of 1992. The Revenue has approached this court in these references of 1996 for the same assessment years 1979-80, 1980-81, 1981-82 and 1982-83 (four assessment years)--with regard to the questions that are initially declined to be referred by the Tribunal. THESE references were considered together, ultimately creating jurisdictional difficulties for us to answer the questions involved therein, although it must be stated that jurisdictional difficulties making us impossible to deal with and answer questions, floated on the surface of the record. It must also be stated that the aspect is not specifically urged with reference to any of the questions raised either by the assessee or even by the Revenue,

(2.) IT is true and we are very much conscious that under Section 260 of the Income-tax Act, 1961, the court gets concerned with the question referred to it in its advisory function. In the process, the court also comes to a decision to refuse to answer such questions on the basis that such questions need not and should not be answered and at times may re-formulate the questions. In the process of reasoning, the court also has to be conscious that in the process of re-formulation if required, the expected questions in such a process must emerge from the material on record considered by the Tribunal, out of which the proceedings under Section 260 of the Income-tax Act, 1961, are before this court. IT is also to be borne in mind that in the process of dealing with the proceedings under Section 260 of the Income-tax Act, 1961, new and altogether different questions are not expected to be raised and answered consequently and the power in this connection is capable of enabling the court only to re-settle and re-frame the questions with reference to the questions referred to it.

(3.) IN spite of these restricted situations, specific situations do occur. Illustratively, in Kanga and Palkhivala's The Law and Practice of INcome Tax, 7th Edition, Volume I--Section 258 of the INcome-tax Act, 1961--such occasions relating to the finding not having been expressly challenged by a question are also considered- It is found in the process of discussion (see page 1164) that the court answered the question of law even after rejecting a finding of fact, which had no evidence in support of it, to that finding. Illustratively, a question is also posed--should the court give a wrong answer to the question referred because a patently wrong finding of fact, incidental to the question, has not been expressly challenged by a question specifically directed to that finding? IN the context of the real need, situations occur relating to the departure in the context. The court normally should not permit a party who could and should have given relevant evidence at'a stage, which is normally not the stage of receiving evidence. IN such a situation, the court gets directly concerned with reference to the manner in which such evidence has crept in on the record. Even though this court and the apex court exercised advisory jurisdiction, it has to be understood on the basis that they have only two options in the process of dealing with the situation, either to answer the question of law or to call for a supplementary statement of the case.