M.B.SHARMA, J. - (1.) THE Income -tax Appellate Tribunal, Jaipur Bench, Jaipur (for short "the Tribunal"), has drawn up a statement of the case and has referred a question of law for the opinion of this Court. The said reference was made under S. 256 (1) of the INCOME TAX ACT, 1961, at the instance of the assessee, Shri Digamber Jain Dharamshala, Jaipur. After the said reference was received in this Court and was registered, it was ordered that notices be issued to the parties. It was further ordered that since the reference is at the instance of the assessee, the assessee be asked to prepare or cause to be prepared the paper books within three months from the receipt of the notice. But, despite the service of the notices, the paper book has not been filed. A question arose as to whether, on the failure of the assessee or the Tribunal who has made the reference to furnish the paper book and the relevant documents, this Court can refuse to answer the reference ?
(2.) UNDER rule 513 of the Rajasthan High Court rules (for short "the Rules") as and when a statement of case has been referred to this Court by the Tribunal either under sub -s. (1) or sub -s. (2) of S. 66 of the old IT Act which corresponds to S. 256 (1) and (2) of the INCOME TAX ACT, 1961, notice thereof shall be given to the parties and the Registrar shall call upon the party at whose instance the reference has been made to prepare or cause to be prepared a paper book of the case within such time as the Registrar may allow. The Registrar may, for sufficient cause shown, extend such time. Under r. 515 of the Rules, the Registrar shall be determine the cost of preparing the paper book and such cost shall be the costs in the cause. The case can be heard only under r. 517 of the Rules when the paper book has been prepared and copies thereof are supplied to the parties and only then the case shall be listed for hearing before the Bench concerned. It will appear from a perusal of the aforesaid relevant rules that, only after the preparation of the paper book, the case is ripe for hearing. Therefore, it is the duty of the assessee to prepare the paper book and if the assessee fails to prepare the paper book, the Court has no option but to return the same unanswered. The Bombay High Court, in the case of CIT vs. Bombay Master Printers' Association (1984) 146 ITR 339 (Bom) : TC55R.1079 held that failure of the Department to make available the paper book to counsel for the assesses sufficiently in advance of hearing may be treated as inability of the Department to prosecute the reference and the Court can decline to answer the questions referred to it. This Court has also taken a similar view and it appears that the matter was taken to the apex Court and the apex Court, in the case of Jaipur Mineral Development Syndicate vs. CIT 1977 CTR (SC) 92 : (1977) 106 ITR 653 (SC) : TC55R.958, said that once the High Court has passed an order declining reference because the appellant had not put in appearance and had also not filed the paper books, the High Court does not become functus officio to entertain an application for rehearing the reference and dispose of the matter on merits. It will, therefore, be clear that so far as the High Court's refusal to answer the reference is concerned, it was not disputed by the apex Court.
(3.) CONSEQUENTLY , we have no opinion but to return the reference unanswered. The reference may be returned to the Tribunal unanswered.;