ARISETTY BUTCHANNA Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) BOTH these references are made under section 66(2) of the Indian Income-tax Act at the instance of the assessee, who is the same in both the cases. A notice under rule 6 of the Madras High Court Rules was issued to the assessee. The assessee is absent at the hearing of the case today. The question that arises for decision is whether under the provisions of section 66(5) of the Indian Income-tax Act it is mandatory for his court to answer the reference even though the assessee at whose instance the reference was made is absent at the hearing.

(2.) SECTION 66(5) of the Income-tax Act is in the following terms :

(3.) WE shall now refer to the decisions which considered the cope of section 66(5) when the assessee, at whose instance the reference was made, was absent at the hearing. The earliest decision to which our attention was drawn is M.M. Ispahani Ltd. v. Commissioner of Excess Profits Tax. The learned judges of the Calcutta High Court held that if the parties are not present at the hearing, it can only mean that they are not desirous of having the question considered further by the High Court. The learned judges at page 191 added that "if the party, who felt doubt about the correctness of the decision of the Tribunal and was not satisfied with it, fails to appear at the hearing of the reference, it must be either for the reason that he no longer feels any doubt or that he is not wiling to proceed further in the matter whatever the cause may be." At page 192 the learned judges observed as follows :