Law: Income Tax Act, 1922

Section: 66

Income-tax-Reference-Applicant absent on day of hearing --Whether High Court bound to answer reference-Indian Income-tax Act, 1922, S. 66. There is no obligation upon the High Court to decide the question of law referred, if the party, at whose instance the reference has been made, is absent when the case is called on for hearing. Arisetty Butchanna v. Commissioner of Income-tax (1962) 46 I T R 703 ; Commissioner of Income-tax v. Gourishankar Lal Singha (1967) 63 I T R 711 ; Commissioner of Income-tax v. Pothen Joseph and Sons A I. R 1957 T C 267 ; Ispahani (M. M.) Ltd. v. Commissioner of Excess Profits Tax (1955) 27 I T R 188 and Tamarind Products v. Commissioner of Income-tax (1956) 30 ITR 348 ref R. L. Gulati for the Commissioner. JUDGMENT PATHAK, J.-This reference has been made at the instance of the assessee under section 66(1) of the Income-tax Act, 1922. During the pendency of the reference, Sri V. P. Tewari entered appearance as counsel on behalf of the assessee, but thereafter Sri Tewari ceased to practise in this Court. Notice was served upon the assessee accordingly, and an opportunity was given to engage another counsel to represent it in the case. The case has now come on for hearing, but the assessee is absent and nobody appears on behalf of the assessee. At the outset the question arises whether in the absence of the assessee, or any counsel engaged to represent it, it is obligatory upon the Court to consider the statement of the case submitted by the Tribunal and to express its opinion upon the question of law referred to it. Subsection (1) of section 66 provides for a reference to the High Court for its opinion upon the question or questions of law referred to it. Subsection (5) of section 66 provides:- "The High Court upon the hearing of any such case shall decide the questions of law raised thereby and shall deliver its judgment thereon . . . . ." At first blush it would appear that the High Court is bound to decide the questions of law and it cannot do otherwise. But on further examination we find it difficult to accept the position that, where a party at whose instance the reference has been made could have appeared when the case…