SHIVA GUN FACTORY Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) IS the High Court powerless to grant a stay against the realisation of tax in an application made by the assessee under Section 256(2) of the Income-tax Act, 1961 ? This question falls for determination in this civil miscellaneous petitions filed by the Revenue for vacation of a stay order granted by this court on November 24, 1992.

(2.) THE controversy arises out of the assessee's application filed under Section 256(2) seeking a direction to the Tribunal to refer certain questions, said to be questions of law, to this court for opinion. THE application was admitted for hearing on November 24, 1992, and the Income-tax Officer's assessment order was stayed. THE Revenue seeks vacation of this order and that is how the matter is before us.

(3.) THEREFORE, the jurisdiction enjoyed by the High Court in a reference under Section 256 is neither appellate nor revisional or supervisory. While exercising it, the court does not sit in appeal over the judgment of the Tribunal. Nor can it correct any error of fact or law in the decision of the Tribunal. Consequently, it has no power to grant any stay which power is normally incidental and ancillary to the types of jurisdiction referred to hereinabove. This view finds support in the Supreme Court judgment in CIT v. Scindia Steam Navigation Co. Ltd. [1961] 42 ITR 589 (SC), wherein it was held thus :