COMMISSIONER OF WEALTH TAX Vs. SAYAJI MILLS LIMITED

JUDGEMENT

(1.) THIS application raises an interesting question regarding the procedure to be followed by the Income -tax Appellate Tribunal in making a reference to the High Court under the Wealth -tax Act or under the Income -tax Act or similar statutes. The question arises in this manner. The petitioner before us is the Commissioner of Wealth -tax and the respondent is the assessee. After the decision of the Tribunal was given in the particular case an application as required by law was made asking the Tribunal to refer a certain question of law which according to the revenue arose from the decision of the Tribunal. When the statement of the case was to be finalised, the Tribunal decided that out of the three questions which the department wanted the Tribunal to refer to the High Court, only one question should in fact be referred and it decided not to refer the other two questions to this High Court. That reference has already been made and Wealth -tax Reference No. 21 of 1970, which is now pending before this court, is in connection with the one question which the Tribunal decided to refer to the High Court. At the time when the statement of the case was to be finalised, both the department and the assessee were heard by the Tribunal and in paragraph 2 of the statement of the case the Tribunal has set out the questions which the Commissioner wanted to be referred to the High Court. The department's stand was that, apart from question No. 3, which the Tribunal actually decided to refer, questions Nos. 1 and 2 indicated by the Commissioner in his application asking for the reference should also be referred in view of the fact that this High Court had directed a reference on the same points inanother case, viz., the case of Shri Kantilal Manilal, which arose under Section 23 of the Wealth -tax Act. In the case of Kantilal Manilal the Tribunal refused to make a reference and the department came to the High Court and the High Court called for a reference from the Tribunal. In view of this background, on behalf of the department, it was urged before the Tribunal at the stage of finalization of the statement of the case that questions Nos. 1 and 2 should also be referred to the High Court. In reference to this contention the Tribunal proceeded to state in the statement of the case :

(2.) THE Tribunal felt that though the earlier order dated October 17, 1969,in the instant case was styled as: 'statement of the case - -draft for thetable', it was in fact a decision arrived at by the Tribunal after hearingthe parties on the reference application. The order consisted, according tothe Tribunal, of two parts, one rejecting certain questions of law, whichwere sought to be raised and the other allowing one out of the threequestions of law. So the conclusion reached by the Tribunal refusing torefer certain questions of law was final and this portion of the order of theTribunal could not be altered as it would amount to reconsideration orreview of the order which was not authorised under the provisions of law.According to the Tribunal, the only portion which was not finalised wasthe statement of the case containing the facts on record out of which theparticular question of law agreed to be referred by the Tribunal arose.The Tribunal proceeded to add :

(3.) BOTH the learned Advocate -General appearing on behalf of the petitioner and Mr. Kaji, appearing on behalf of the respondent, are agreed that the practice which is followed by the Appellate Tribunal in making a reference under the Income -tax Act or under the Wealth -tax Act or similar allied statutes is as follows :