- (1.) On an application under Section 66 (1) of the Income-tax Act made by the Commissioner of Income-tax, U. P., C. P. and Berar, the Appellate Income-tax Tribunals Allahabad, referred to this Court a question of law for its decision on 16-12-1943. The assessee, Mr. I. D. Varshani, was an individual. While the reference was pending the assessee died and it is admitted that death took place on 10-12-1948. In the counter-affidavit filed on behalf of the three sons of the assessee detailed facts are given to show that the Income-tax Officer, Kanpur Circle, was informed of Mr. Varshani's death and in subsequent years the sons of the deceased were assessed to Income-tax. The reference was put up before a Bench of this Court for hearing on 13-9-1949, when Mr. S. N. Katju, learned counsel for the assessee, stated that his client had died on 10-12-1948. The Court directed that "the Commissioner of Income-tax should make an application within one month, giving the names of the legal representatives of the deceased to whom notice may be issued." The Commissioner, however, did not furnish the information asked for with the result that the legal representatives of the deceased assessee could not be informed of the next date of hearing of the reference. The reference came up again before a Bench of this Court on 26-7-1950, when it passed the following order : "The assessee died on 10-12-1948, and in spite of the fact that learned counsel for Income-tax Department was given time to bring the legal heirs of the assessee on record he has failed to do so. A point has been raised whether the reference has or has not abated. It is desirable that we should hear the heirs of the assessee on this point. Mr. Walter Dutt wants three weeks' time to make an application for bringing the heirs of the deceased on the record. The time prayed for is granted and the question as to whether or not the reference has abated will be gone into when that application is put up for hearing."
(2.) Before we proceed further we may mention that though the assessee had died on 10-12-1948, when the reference was put up before a Bench on 13-9-1949, nobody had contended that the reference had abated, nor did the Bench direct that a substitution application should be filed praying for the legal representatives of the deceased assessee to be brought on record. The direction given to the Commissioner of Income-tax was that he should, within one month, furnish the names of the legal representatives of the deceased to whom notice may be issued. Under Chapter 27, Rule 13 of this Court the Registrar on receipt of a reference under Sub-section (1) or (2) of Section 66, Income-tax Act is required to give notice thereof to the parties. The Rules do not provide that the party which had applied for a reference, should take steps to have notices issued to the opposite party after the reference is made to this Court.
(3.) So far as we could find, there are no provisions either in the Income-tax Act or in the Rules made thereunder for bringing the legal representatives on the record, nor are there any rules providing for abatement of the reference in case the legal representatives are not so brought within a certain time. In other words, Order 22, C. P. C. has not been made applicable to a reference under Section 66, Income-tax Act. Section 37, Income-tax Act makes portions of the Civil P. C. applicable to proceedings before the Income-tax Officer, He has been given the right to enforce the attendance of any person and examine him on oath. He has also been given the right to compel the production of any document. He can also issue commissions for examination of witnesses etc. The same powers have been granted also to the Appellate Assistant Commissioner and the Tribunal. How a reference is to be dealt with after it is made under Section 66 is provided for in Sections 66(5) and 66A(1) of the Income-tax Act and all that they provide is that a reference shall be heard by a Bench of not less than two Judges. It may be said that since the sections provide for a hearing, it is expected that the Court would before passing final orders on the reference inform the parties interested and hear them if they so desire. Section 66(3), which dealt with appeals to His Majesty in Council and now deals with appeals to the Supreme Court, on the other hand, provides that the relevant provisions of the Civil P. C. are applicable to such applications. Order 22, Civil P. C, not having been made applicable and there being nothing either in the Income-tax Act or the Rules framed thereunder, it cannot be urged that the reference has abated by reason of the fact that the assessee has died.;