ALLAHABAD BANK LTD Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THIS is a reference under s. 66(1) of the Indian IT Act by which the Calcutta Bench of the Tribunal has asked for the opinion of this Court on the following question of law :--

(2.) I shall, have to say something presently about the scope of the question but before doing so, I should like to state the facts in outline and the course which the proceedings have taken.

(3.) ALTHOUGH at the end of the hearned the learned Counsel for both parties agreed that we should limit ourselves to the questions dealt with by the Tribunal, there was some discussion at the Bar as to the scope of the High Court's jurisdiction in such cases. Both sides referred to the wide language in which the question had been expressed. Mr. Mitter, on behalf of the assessee, while he did not ask us to consider any question other than the validity of the trust, suggested at one stage of his argument that we should at least add a rider to our answer to the effect that, whether affirmative or negative, it would not conclude the question of the assessability of the amount concerned in either way. That course, he contended, we should adopt in the interests of justice. In my opinion, it is not proper to overlook the fact that the jurisdiction of the High Court upon a reference under s. 66(1) of the IT Act is purely advisory, that the sole task of the Court is to answer the question actually referred on the case stated and that it is no part of its duty or right to give further advice or to set about raising other questions and proceedings to decide them. Oftener than not, questions are framed in such a way as to ask whether a particular order is warranted by a particular section of the IT Act. As is well-known, questions which may conceivably arise under any, section of the Act are legion and it would be intolerable if the High Court, in dealing with a reference, was called upon, and took it upon itself, to consider and decide all such questions. In my view, the proper course for the High Court to adopt is to limit itself severely to the questions arising out of the order of the Tribunal and to proceed on the view that only those questions arise out of the order which have been dealt with by it and that of such questions again, those only should be considered and answered by the High Court which have been actually referred. It must certainly be conceded that the High Court may re-frame a question referred in order to clarify its meaning or to bring the real controversy to the surface ; but it cannot and ought not to re-settle the issues, as it were, and add some questions to those referred whether on the ground that they were dealt with by the Tribunal or on the ground that though not so dealt with, they arise out of the facts of the case. If the Tribunal fails to make a proper reference or refers a question in an imperfect or a partial form, the Act provides a remedy to the party affected and he can, on making out a proper case, compel the Tribunal to refer the question he desires to be referred. When such remedy has not been availed of, the High Court, in my view, ought to take the question referred as it stands and give its opinion only on that question on which its opinion had been sought. In dealing with a reference, it is not revising the assessment itself but only answering a particular question or questions. Accordingly, no question of doing justice between the parties in a general sense arises, although the question or questions referred will be justly, fully and properly answered.