JATASHANKAR DAYARAM Vs. COMMISSIONER OF INCOME TAX
LAWS(BOM)-1972-12-4
HIGH COURT OF BOMBAY
Decided on December 08,1972

JATASHANKAR DAYARAM Appellant
VERSUS
COMMISSIONER OF INCOME TAX Respondents

JUDGEMENT

NAIN, J. - (1.) THIS petition has been placed before the Court by the learned Prothonotary and Senior Master of this Court at the instance of the respondents to decide a preliminary question as to whether a pauper petition is maintainable in respect of an application by an assessee under s.256(2) of the IT Act, 1961, for compelling the Tribunal to draw up a statement of the case and refer it to the High Court.
(2.) PETITIONER has filed the above petition in forma pauperis for a direction to the Tribunal to draw up a statement of the case and raise and refer to this Court certain questions of law specified in the petition under S. 256(2) of the IT Act. The amount of tax in dispute is a little over Rs. 20,000 and the amount of Court fees payable under item No. 16 of Schedule I to the Bombay Court Fees Act, 1959, is Rs. 390. The petitioner states that he is not possessed of sufficient means to enable him to pay the fees payable by law and he may, therefore, be granted permission to sue in forma pauperis. This petition is opposed on behalf of the CIT. It is contended on behalf of the respondent that the provisions of the CPC do not apply to proceedings under S. 256(2) of the IT Act, and consequently Order 33 of the CPC has no application to these proceedings and no application can be filed in forma pauperis. My attention has been drawn to S. 131 of the IT Act, which confers powers of a Court when trying a suit on ITOs, AACs, IACs and CITs for the purposes of discovery and inspection, enforcing the attendance of any witnesses and issuing commissions. My attention has also been invited to ss. 261 and 262 of the IT Act. Sec. 261 provides for an appeal to the Supreme Court from any judgment of the High Court on a reference under S. 256 of the IT Act. Sec. 262 makes the provisions of the CPC, 1908, relating to appeals to the Supreme Court applicable in the case of an appeal under S. 261. It is contended that there is no provision in the IT Act, which makes any of the provisions of the CPC applicable to applications under S. 256(2) of the IT Act made to the High Courts. It is, therefore, contended that Order 33 of the CPC does not apply to such applications and a petition to apply under S. 256(2) in forma pauperis is not maintainable. Mr. Shastri for the respondent has invited my attention to three judgments, one of the Andhra Pradesh High Court, one of the Allahabad High Court and one of the Calcutta High Court, wherein it has been held that where an applicant under S. 66 of the Indian IT Act, 1922 (which corresponded to S. 256 of the IT Act, 1961), died during the pendency of a reference before the High Court, the reference did not abate because the provisions of the CPC were not applicable to references under the Indian IT Act, 1922.
(3.) IN the case of CIT vs. I. D. Varshani (1953) 23 ITR 163 (All), the applicant had died not during the pendency of an application to compel a reference but during the pendency of the reference itself. A Division Bench of the Allahabad High Court held that there was no provision either in the Indian IT Act, 1922, or in the Rules made thereunder for bringing on the record the legal representatives of an assessee and that Order 22 of the CPC , 1908, had not been made applicable to a reference under S. 66 of the IT Act and, therefore, the reference did not abate. If the CIT had not applied to bring the legal representatives of the deceased assessee on record within 90 days of his death the Court was entitled to consider whether it would answer the reference at all. The judgment does not show that any argument was based on S. 141 of the CPC or that the said section was at all considered. In the case of CIT vs. Gulam Hyderkhan (1962) 46 ITR 463 (AP), a Division Bench of the Andhra Pradesh High Court took a similar view holding that the provisions of Order 22 would not be attracted to a reference under S. 66 of the Indian IT Act, 1922, and the position of an assessee in a reference under S. 66 could not be equated to that of a defendant or respondent. In this case also the provisions of S. 141 do not appear to have been considered. In the case of CIT vs. Gourishankar Lal Singha (1967) 63 ITR 711 (Cal), a Division Bench of the Calcutta High Court took the same view as the Allahabad and Andhra Pradesh High Courts, after referring to the said decisions. In that case, the assessee had died during the pendency of an application for leave to appeal to the Supreme Court against the judgment of the High Court, on a reference under S. 66 of the IT Act. In this case also the provisions of S. 141 of the CPC do not appear to have been considered.;


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