SHANTIBAI Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THIS judgment shall also dispose of Misc. Civil Case No. 2 of 1981 (Smt. Mainabai v. Commissioner of Income-tax).

(2.) IN both these references made to this court as a consequence of the direction given under Section 256(2) of the I.T. Act, 1961, the question of law referred for decision of this court is the same, which is as under I

(3.) THE contention of Shri Nema, learned counsel for the assessee, is that the appeal was maintainable, by virtue of Clause (n) of Section 246, which provides for an appeal against " an order under Section 237 ". He argues that Section 237 has to be read along with Section 240 and if that is done, the ITO's direction not to refund the tax deposited as a result of the provisional assessment in spite of the revised income being assessed as nil by the ITO after cancellation of the regular assessment by the Tribunal's order, is clearly appealable. In reply, Shri Rawat, learned counsel for the Revenue, contends that an appeal is a creature of the statute and, therefore, no appeal would He in the present case, unless the impugned order of the ITO is specified as an appealable order in Section 246. He argues that Clause (n) in Section 246 provides for an appeal against an order under Section 237, which requires the procedure laid down in Section 239 to be followed for claiming refund, which was admittedly not adopted in the present case. According to him, Section 240 is a distinct provision which may raise an obligation on the ITO for giving refund enforceable by a writ of mandamus, but no appeal can lie against such an order.