Decided on July 31,1972



Alladi Kuppuswami, J. - (1.) CERTAIN questions were referred for decision under Section 26(2) of the Gift-tax Act by the Tribunal under the directions of the High Court. Sri Mangachari who appears for the assessee, stated that the assessee is not interested in pursuing the matter and would like to withdraw the reference.
(2.) IT is now settled by a number of decisions that this court may decide not to answer a reference if the party fails to appear or does not take any interest in the matter. We need refer only to the decision of this court in Arisetty Butchanna v. Commissioner of Income-tax, 1962 46 ITR 703 (A.P.)., where it was held that the High Court is not bound to answer a reference under Section 66(2) of the Income-tax Act, if the assessee, at whose instance the reference was made, does not appear at the hearing of the reference. The same principle has been applied to a case where the party appeared and stated that it was not interested in the reference being answered or made an application for withdrawing the reference, in the decision of the Madhya Pradesh High Court, in Gajadhar Prasad Nathu Lal v. Commissioner of Wealth-tax, . The learned counsel for the income-tax department while not opposing the request for withdrawal drew our attention to the decision of the Calcutta-High Court in Karnani Industrial Bank Ltd. v. Commissioner of Income-tax, 1956 30 ITR 16 (Cal,).. Ir that case the advocate for the assessee requested that he may be allowed to withdraw the application for the reference. It was, however, found that the question for consideration had been finally determined against the contention of the assessee by the Supreme Court. In those circumstances, the learned judges held that the only brder which they could possibly make was an order in accordance with their previous decision as affirmed by the Supreme Court and answered the question referred in the affirmative. We do not consider this as an authority for the proposition that in no case can the High Court allow an assessee to withdraw the reference or to say that he is not interested in pur suing the matter. A number of decisions have held that if a party fails to appear or to take any interest in the matter, the High Court is not bound to answer the reference and it may refuse to do so. When an applicant says that he wishes to withdraw the reference, it means that he does not take any interest in the matter within the meaning of the decisions. When an assessee makes a request to withdraw from the reference or says he is not interested in pursuing the matter, it is left to this court, having regard to the circumstances of the case, either to accede to his request and decide not to answer the reference or to proceed to answer the reference in spite of such a request. The Calcutta High Court in the above case decided to answer the reference as the matter had been finally decided by the Supreme Court. In this case no such circumstances exist. We consider it desirable to accede to the request of Sri Mangachari and decline to answer the reference. The assessee will, however, pay the costs of the reference to the department. Advocate's fee Rs. 250.;

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