Law: Income Tax Act, 1961

Section: 256,262,260,257

Law: Civil Procedure Code (V of 1908)

Section: 141,OrderXXII

Law: Income Tax Act, 1922

Section: 66

Law: Limitation Act, 1963

Section: 120,176,177

Section 256 of the Income-tax Act, 1961, read with Order XXII of the Code of Civil Procedure, 1908 - High Court - Reference to - Whether Order XXII of Code has no application to a case of reference under section 256 of Act - Held, yes - Whether, therefore, there is no abatement of case of reference on account of death of assessee and non-substiution of his heirs within any particular period of time - Held, yes FACTS After death of the assessee, the department filed application for substituting the legal representative of the assessee in a reference under section 256. The legal representative proposed to be substituted was the widow of the assessee and on her behalf it had been contended that the instant application was made long after the period of ninety days allowed by article 120 of the Limitation Act, 1963, and for the reason in view of Order XXII rule 4 of the Code, the case had abated as a whole. HELD An analysis of various decisions of the High Courts clearly brings out the following premises: (i) That the proceedings under section 256 of the Act is not a civil proceeding as the High Court exercises an advisory or consultative jurisdiction and not either original or appellate jurisdiction, (ii ) that Order XXII of the Code has no application because it relates to suits and appeals alone; and (iii) that article 120 of the Limitation Act, 1963, applies only to suits and thus not to a reference under the Act. Order XXII of the Code has no application to a case of reference under section 256 of the Act. The reason is obvious that Order XXII of the Code makes itself applicable to suits and appeals alone. And consequently article 120 of the Limitation Act, 1963 have no application to the case of a reference under the Act; the High Court does not exercise either its original or appellate jurisdiction in dealing with such cases, but merely an advisory or a consultative jurisdiction. Therefore, there can be no abatement of a case of reference. It will appear from section 256 to 262 of the Act relating to the High Court that there is no procedure similar to that as laid down under Order XXII of the Code contained in this Act. For the matter of that, so far as High…

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