COMMISSIONER OF INCOME TAX Vs. RAMDAYAL GHANSIRAM AND SONS

JUDGEMENT

(1.) THE question raised in this case is whether Art. 133 of the Constitution is attracted to a decision given by this Court under S. 66(1) of the Indian IT Act. The CIT seeks to file an appeal to the Supreme Court against a decision of this Court answering a reference, under S. 66(1) against the Department on the following question :

(2.) TAKING all the facts and circumstances of the case, we reached the conclusion that a partition had taken place among the members of the assessee family and that the erstwhile family house properties had been partitioned among the four members in definite portions within the meaning of s. 25A(1) of the IT Act and that in this case it was not necessary that the erstwhile family house properties which were made the assets of the partnership should be divided by metes and bounds so as to entitle the assessee to apply under S. 25A(1) to an order that partition had taken place among the members of the assessee family. In support of our conclusion, reliance was placed on the ruling of the Supreme Court in Charandas Haridas vs. CIT (1960) 39 ITR 202 (SC) : TC37R.736. Dissatisfied with our order, the Department desires to file an appeal to the Supreme Court.

(3.) BUT the point is whether Art. 133 of the Constitution governs a reference under S. 66 of the Indian IT Act. In our judgment, Art. 133 could not apply to a decision on a reference under S. 66 of the Indian IT Act. It looks to us that Art. 133 contemplates a judgment or decree passed by this Court in its appellate jurisdiction, as could be seen from the expression "the subject matter of dispute in the Court of the first instance and still in dispute in appeal..." etc. This Court does not exercise any appellate jurisdiction in answering references under S. 66(1) or 66(2) of the IT Act. It acts only in consultative and advisory capacity while giving decisions under this section Further, as pointed out by Chagla C.J. in Jamnadas Prabhudas vs. CIT (1952) 22 ITR 150 (Bom) : TC56R.691 :