JOSE T MOOKEN Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) In this application the petitioner prays for review of the Judgment of this Court in ITR. No. 84 of 1974. That reference application had been disposed of along with OP. No. 5119 of 1974. We had answered the question referred to us in the ITR. in the affirmative, that is in favour of the department and against the assessee. We had pointed out therein that the Tribunal was right in holding that the proceedings taken against the legal representatives of deceased M. O. Thomakutty ware valid relying on the decision in Westminister Bank Ltd. v. Riches (1947 28 Tax Cases 159). In the application for review various contentions have been raised. Before adverting to these contentions we would have to consider whether an application which the petitioner has filed under O.47 R.1 and S.151 CPC. read With S.260 of the Income Tax Act, 1961 would lie.

(2.) The learned counsel for the Revenue opposing the application would urge that no such application would lie. He points out that under S.256 (1) of the Income Tax Act, 1961 the assessee or the Commissioner may require the Appellate Tribunal by an application in the prescribed form, to refer to the High Court any question of law arising out of such order of the Appellate Tribunal under S.254. If the Appellate Tribunal is satisfied that a question of law arises, it may draw up a statement of the case and refer it to the High Court. If the Appellate Tribunal refuses to state the case on the ground that no question of law arises, the assessee or the Commissioner, as the case may be, within the time stipulated in the provision may apply to the High Court and the High Court may, if it is not satisfied with the correctness of the decision of the Appellate Tribunal, require the Appellate Tribunal to state the case and to refer it and on receipt of such requisition, the Appellate Tribunal shall state the case and refer it accordingly. After the High Court takes a decision on the question, a copy of the judgment in the matter will have to be sent under the seal of the court and signature of the Registrar to the Appellate Tribunal which shall pass such orders as are necessary to dispose of the case conformably to such judgment. What the learned counsel for the Revenue contends is that the relevant provision is indicative of the fact that the High Court is not exercising the power in the matter as a civil court as such and no. question of a review of the decision rendered by the High Court would arise in the face of the fact that there is no specific statutory provision empowering the court to review its order.

(3.) In this connection reference was made to the decision of the Privy Council in Commissioner of Income Tax, United Provinces v. Tehrigarhwal State 1934 (II) ITR 1. In that case Tehri - Garhwal State had been made liable to taxation by the Income Tax authorities for the revenue years 1926-27 upon the profits of timber business Income Tax was levied from the State under S.3 of the Indian Income Tax Act, 1922. From the first the State had contested its liability to taxation. It appealed from the original assessing authority to the Commissioner and from the Commissioner, upon a reference made by him under S.66(2) of the said Act to the High Court of Allahabad. The High Court held on the questions referred to it that none of the grounds taken by the State were tenable and the questions were answered in favour of the Revenue. By the time this judgment was delivered it had apparently been ascertained that the State had in fact no taxable income in the year 1926-27. A part payment of Rs. 25,000/- had been made by the State before the reference, which left a balance of Rs. 18,294-14-0 due upon the demand of the Income Tax authorities. The state, claimed the return of Rs 25,000/-on the ground that it had no taxable income in the year 1926-27, while the Commissioner with equal confidence claimed payment of Rs. 18,294-14-0. A second reference was thereupon made to the High Court by the Commissioner On his own motion asking for the determination of the following questions: