JUGGILAL KAMLAPAT Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) APPLICATIONS Nos. 233, 240 and 243 of 1953 purport to be applications under section 21 of the Excess Profits Tax Act. They relate to appellate orders passed by the Income-tax Appellate Tribunal in appeals arising out of proceedings for assessment of excess profits tax for the three chargeable accounting periods ending on December 31, 1940, December 31, 1941, and December 31, 1942, respectively. The other three connected APPLICATIONS Nos. 234, 241 and 242 of 1953 are applications under section 66 (2) of the Income-tax Act and they are directed against appellate orders of the Tribunal passed in proceedings arising out of assessment of the applicant for the assessment years 1941-42, 1942-43 and 1943-44, the relevant previous years being concurrent with the chargeable accounting periods mentioned above. After the decision of all the six appeal which came up before the Income-tax Appellate Tribunal applications were moved before the Tribunal under section 66 (1) of the Income-tax Act or section 21 of the Excess Profits Tax Act to refer certain question of law to this court. The Income-tax Appellate Tribunal in all six cases prepared statements of the cases and referred them to this High Court. In these statements of the cases only some of the questions, which according to the applicant arose out of the appellate order of the Tribunal, were referred to this court whereas some other questions were not referred. Thereupon, the applicant moved these applications praying to this court to ask for statements of the cases from the Income-tax Appellate Tribunal in respects of those question which were not included in the statements of the case already referred to this court by the Tribunal. When these applications came up for hearing a preliminary question arose whether these applications could appropriately be presented under section 66 (2) of the Income-tax Act or whether the appropriate provision of law under which such applications could be entertained by the court would be section 66 (4) of the Income-tax Act. We, consequently, heard learned counsel for the parties on this preliminary question. It may be mentioned that though the applicants had themselves moved these applications purporting to be under section 66 (2) of the Income-tax Act, Mr. R. S. Pathak, learned counsel appearing for them, urged before us that the applications could appropriately be moved under section 66 (4) of the Income-tax Act and prayed that these applications be treated as such.

(2.) THE preliminary question that thus falls for our decision is whether in cases where an assessee makes an application under section 66 (1) of the Income-tax Act to the Tribunal to refer more than one question of law arising out of the appellate order of the Tribunal and the Tribunal only draws up a statement of the case in respect of some of the questions of law and refers it to the High Court while refuses to frame other questions of law or to draw up a statement of the case in respect of them, the appropriate provisions of law under which the aggrieved assessee can move this court is section 66 (2) of the Income-tax Act or section 66 (4) of the Income-tax Act. It appears that for the purposes of deciding this question it is necessary to make a close scrutiny of the language of the various sub-sections of section 66 so as to be able to find out which of the two provisions of the law is more appropriately applicable.

(3.) IN the second case, where the statement of the case which is referred by the Tribunal to the High Court under section 66 (1) of the INcome-tax Act includes within it all the questions of law which the assessee desired the Tribunal to refer to the High Court, no question would arise of the assessee making a grievance against the order of the Tribunal except that in some cases it may be found that, though the statement of the case is complete as including all questions of law arising out of the appellate order of the Tribunal, it may still be defective to the extent that it may not contain complete statements of facts and circumstances relevant for the decision of those questions. IN such circumstances, the aggrieved party can invoke the powers of the High Court under section 66 (4) of the INcome-tax Act. Apart from the right of a party to invoke the powers of the High Court, the High Court also possesses power suo motu to have the defect rectified by calling upon the Tribunal to make additions to or alterations in the statements which may have been made by the Tribunal in the case when referring the case to the High Court. This remedy under section 66 (4) in respect of the defect in the statement of a case referred is available in both cases where the statement of the case is submitted to the High Court by the Tribunal under section 66 (1) of the INcome-tax Act or where the statement of the case is submitted under section 66 (2) of the INcome-tax Act. Any defective statement as to facts and circumstances in the statement of the case prepared by the Tribunal either under section 66 (1) or 66 (2) of the Act can thus be clearly rectified if the High Court exercises its power under section 66 (4) of the INcome-tax Act.