R.K. Gulati, J. - (1.) This applications under Sub-section (2) of Section 256 of the Income-tax Act, 1961 (for short "the Act"), it appears to us, is misconceived and is not maintainable. The Commissioner of Income-tax, Lucknow, feeling aggrieved by the order of the Income-tax Appellate Tribunal made an application to it under Sub-section (1) of Section 256 of the Act for making a reference to this court on the questions set out in the application. The Tribunal, by its order dated March 9, 1990, drew up a statement of the case and circulated it to the parties. However, by its order dated August 21, 1990, the Tribunal recalled its earlier order and refused to forward the statement of the case to this court, observing as under : "In spite of a number of opportunities given to the Commissioner of Income-tax, the annexures are not filed. We, therefore, recall the draft statement of the case prepared and decline to draw up a statement of the case, since reference without annexures cannot be made to the Hon'ble High Court. For this, we find support from the decision of the Bombay High Court in the case of CIT v. John Fowler (I) Ltd. [1988] 171 ITR 150."
(2.) It is in this background that the present application under Sub-section (2) of Section 256 of the Act has been filed proposing the same question that was raised in the application under Section 256(1) of the Act.
(3.) We have heard learned counsel for the parties, A plain reading of Sub-section (2) of Section 256 of the Act would show that this sub-section entitles an assessee or the Commissioner, as the case may be, to apply to the High Court for a direction to the Tribunal to state the case where the Tribunal refuses to state the case on the ground that no question of law arises. In other words, the sine qua non for availing of the jurisdiction of the High Court under Sub-section (2) of Section 256 of the Act is that the Tribunal had declined to state the case to the High Court on the ground that no question of law arises from its order. In the present case, the Tribunal has not refused to refer the case on that ground. It rejected the reference application on the ground that the Revenue had failed to supply the annexures mentioned in the draft statement despite several opportunities being allowed in that regard. In this view of the matter, in our opinion, the applicant is not entitled to question the correctness of the order passed under Section 256(1) by taking recourse to Sub-section (2) of that section. The remedy of the applicant, if any, may He elsewhere. The application, in our opinion, is wholly misconceived.;