Law:

Section:

Section 256 of the Income-tax Act, 1961, read with section 141 and Order xxxiii of the Code of Civil Procedure, 1908 - High Court - Reference to - Whether provisions of Order xxxiii code would be applicable to proceeding other than suits in High Court by of virtue of section 141 of Code and they would, therefore, be applicable to application under section 256(2) of Act - Held, yes - Whether pauper petition in respect of application by an assessee under section 256(2) of Act, for directing Tribunal to draw up statement of case and refer it to High Court, was maintainable - Held, yes FACTS The assessee had filed the petition in forma pauperis for a direction to the Tribunal to draw up a statement of the case and raise and refer to the High Court certain questions of law specified in the petition under section 256(2) of the Act. The amount of tax in dispute was a little over Rs. 20,000 and the amount of court-fees payable under item No. 16 of Schedule I to the Bombay Court Fees Act, 1959, was Rs. 390. The petitioner stated that he was not possessed of sufficient means to enable him to pay the fees payable by law and he might, therefore, be granted permission to sue in forma pauperis. This petition was opposed on behalf of the Commissioner on ground that that the provisions of the Code do not apply to proceedings under section 256(2) of the Act, and consequently, order xxxiii of the Code had no application to proceedings and no application could be filed in forma pauperis. HELD Section 141 of the Code provides that the procedure provided in the Code in regard to suits shall be followed as far as it can be made applicable in all proceedings in any court of civil jurisdiction. No doubt that an application under section 256(2) made to the High Court is a proceeding in a court of civil jurisdiction. It could not be accepted that such application is merely a continuation of proceedings before the income-tax authorities or before the Tribunal. It is an independent proceeding before a court of civil jurisdiction. Section 141 would, therefore, apply. One has, however, to see whether the provisions of Order xxxiii of the Code, are procedural provisions or they confer any…

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