Shah, J. - (1.) The assessees and the Commissioner have preferred appeals against the order of the Tribunal passed under S. 33(4) of the Indian Income-tax Act, after their applications to the High Court of Calcutta for orders requiring the Tribunal to state a case under S. 66(2) were dismissed.
(2.) Counsel for the assessees contends that even if his appeal against the order of the High Court under S. 66(2) fails on the merits, this Court has power to consider their appeal against the order of the Tribunal. This Court in Chandi Prasad Chhokhani vs. State of Bihar. 1961-43 ITR-498 in dealing with cases where against the order passed by a Tax Tribunal, without appealing against the order of the High Court refusing to call for the statement of the case set out the practice as follows: (a) Where the aggrieved party approaches the High Court under a taxing Statute for an order calling for a statement of the case and the High Court rejects the application, this Court in exercise of its powers under Art. 136 will not ordinarily allow the order of the High Court to be bypassed by entertaining an appeal directly against the order of the Tribunal. Such exercise of power would be particularly inadvisable where the result may be conflict of decisions of two Courts of competent jurisdiction. The scheme of the taxing statutes is to avoid such a conflict by making the decision of the taxing authorities on questions of fact final subject to appeal, revision or review as provided by the statutes and the decision of the High Court subject to appeal to this Court final on questions of law. (b) This rule does not bar the Court from granting special leave where circumstances are exceptional, such as, in Dhakeswari Cotton Mills Ltd. vs. Commr. of Income-tax, West Bengal (1955) 1 SCR 941:(S) AIR 1955 SC 65) where the Tribunal had violated fundamental rules of justice or as in Baldev Singh vs. Commr. of Income-tax, Delhi and Ajmer, (1961) 1 SCR 482, where on account of special circumstances over which the aggrieved party has no control the High Court was unable to consider the application for calling for a statement of the case on the merits, and the right of the party to approach the High Court was thereby lost.
(3.) Counsel for the assessees contended that in Chhokhani's case, (supra) no appeal at all was filed by the assessees against the order of the High Court and- the principle of that case is in-applicable in a case where the aggrieved party has appealed against the order of the Tribunal. It is true that in the case before us appeals have been filed against the order of the Tribunal deciding the appeal under S. 33(4) of the Indian Income-tax Act as well as the order of the High Court under S. 66(2) refusing to require the Tribunal to state a case; but we fail to see any distinction in principle between a case in which in appealing against the order of the Tribunal no appeal is filed against the order of the High Court, and a case in which an appeal is filed against the order of the Tribunal as well as against the order of the High Court and the latter appeal is dismissed because it has no merit.;