Bhargava, J. - (1.) THIS is an application under Section 256(2) of the Income-tax Act, 1961.
(2.) AGAINST the assessment order of the Income-tax Officer, Trust Circle, Jaipur, dated February 5, 1980 (annexure-A), relating to the assessment year 1977-78, the assessee preferred an appeal before the Appellate Assistant Commissioner of Income-tax, A-Range, Jaipur, which was allowed by order dated June 17, 1980 (annexure-B). Feeling aggrieved by the said order, the Revenue preferred an appeal before the Income-tax Appellate Tribunal, Amritsar Bench, Camp at Jaipur, which was dismissed by order dated October 24, 1980 (annxure C). Thereafter, the Revenue preferred an application under Section 256(1) of the Income-tax Act, 1961, for making a reference to this conrt. The Income-tax Appellate Tribunal, Jaipur Bench, Jaipur, by its order dated May 27, 1981 (annexure-D), was of the opinion that the following questions of law do arise : " 1. Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the provisions of Section 164(1) itself are not applicable and both the beneficiaries and their shares are known and determinate ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in upholding the decision of the Appellate Assistant Commissioner about the charging of the rate of tax by treating the asses-see as an association of persons on the rates applicable to the income of such association ? " The Tribunal, therefore, drew up a draft statement of the case for making a reference to this court and ordered that the following documents will form part of the statement of the case : " 1. ITO's order 2. AAC's order 3. Tribunal's order 4. Trust Deed [5] Samjhota Patra. " It was further observed that " the Revenue shall furnish copies of the above documents, as required under the law, to the Appellate Tribunal before the date of finalisation of the draft statement, failing which the reference applications shall stand rejected notwithstanding the fact that the draft statement has been prepared and reference is proposed to be made to the High Court, as incomplete statement cannot be sent to the High Court". The case was fixed for June 26, 1981, for finalising the draft statement of the case. The parties were again heard on June 26, 1981, and the matter was then fixed for June 30, 1981. The matter again came up before the Tribunal on June 50, 1981, and by that time, the Revenue did not furnish copies of the documents to the Appellate Tribunal, required to be annexed with the statement of the case, in spite of the specific directions, vide order dated May 27, 1981, and, therefore, the three reference applications were rejected, vide order dated June 30, 1981. It is under these circumstances that the Revenue has moved the present petition under Section 256(2) of the Income-tax Act, 1961.
(3.) THE petition was admitted and notices were issued to the assessee. THE assessee put in appearance through Mr. N. M. Ranka and Mr. J. K. Singhi. We have heard learned counsel for the parties. We thought it proper to call for the original record of the reference application before the Tribunal. The record of the Tribunal has been received and we have perused the same. Learned counsel for the assessee has taken a preliminary objection that this application under Section 256(2) of the Income-tax Act is not maintainable in view of the fact that the Tribunal was of the opinion that questions of law do arise in the case, and, therefore, a draft statement of the case for making a reference had also been prepared, and the order of the Tribunal, dated June 30, 1981, does not amount to refusal to state the case on the ground that no question of law arises. Learned counsel for the assessee had placed reliance on some authorities as well, which we shall deal with in the latter part of the judgment. ;