1. This is a reference under section 34(1) of the Bombay Sales Tax Act, 1953, made at the instance of the assessees. When this reference was called out for hearing the applicant-assesses were absent. A question arises as to what we should do with the question of law, which has been submitted to us by the Tribunal in this reference in the case stated by it. Sub-section (5) of section 34 of the said Act provides as follows :
'The High Court upon the hearing of any such case shall decide the question of law raised thereby, and shall deliver its judgment thereon containing the grounds on which such decision is founded, and shall send to the Tribunal a copy of such judgment under the seal of the court and signature of the Registrar, and the Tribunal shall dispose of the case accordingly.'
2. The jurisdiction of the High Court under section 34 of the said Act is an advisory jurisdiction. It may, therefore, appear at the firs blush that when a question of law is referred by the Tribunal to the High Court, the High Court should answer such question and give its finding thereon and return the answer to the Tribunal so as to enable the Tribunal not only to dispose of the particular case in which the reference was made in accordance with the judgment of the High Court but also to have a decision which is binding on it in future cases on the question of law decided by the High Court. It, however, appears to us that it is not necessary for this High Court to decide the questions of law referred to it in all references academically, and to no practical effect.
3. This particular reference has been made at the instance of the assessees. It has been made because the applicant-assesses were dissatisfied with the finding of law given by the Tribunal and the case has been stated and the question referred to us at the instance of the assessees. The fact that the applicant-assesses have not appeared before us and have not submitted any arguments on why this question of law was wrongly decided by the Tribunal clearly shows that the applicant-assesses are no more interested in the proceedings and do not desire any answer by the court on the question referred to it. In these circumstances, we fail to see why we should take up public time in decided a question in which the party desiring it to be answered by the court is not interested.
4. We are fortified in the view we have taken by the decisions of various High Courts on identical provisions contained in the Indian Income-tax Act, 1922, and the Wealth-tax Act, 1957. Section 66(5) of the Indian Income-tax Act, 1922, is in terms the same as section 34(5) of the Bombay Sales Tax Act, 1953. The view which we have taken in this case was taken by the Calcutta High Court in M. M. Ispahani Ltd. v. Commissioner of Excess Profits Tax, : 27ITR188(Cal) , where also the applicant-assesses at whose instance a reference was made under section 66(1) of the Indian Income-tax Act, 1922, did not appear before the court. In that case, the Calcutta High Court declined to answer the question for the very same reasons, which have made us arrive at out decision, and directed the applicant-assesses to pay to the Commissioner of Excess Profits Tax the costs of the reference. The same view was taken by the Madras High Court in Tamarind Products v. Commissioner of Income-tax : 30ITR348(Mad) , by the Travancore-Cochin High Court in Commissioner of Income-tax v. Pothan Joseph & Sons A.I.R. 1957 T.C. 267 and by the Andhra Pradesh High Court in Arisetty Butchanna v. Commissioner of Income-tax : 46ITR703(AP) . Sub-section (6) of section 27 of the Wealth-tax Act, 1957, is in terms very similar to sub-section (5) of section 66 of the Indian Income-tax Act, 1922, and sub-section (5) of section 34 of the Bombay Sales Tax Act, 1953. In a reference made under the Wealth-tax Act, 1957, at the instance of the assessee in which the applicant-assessee remained absent, namely, Gajadhar Prasad Nathu Lal v. Commissioner of Wealth-tax : 76ITR615(MP) , the Madhya Pradesh High Court arrived at the same conclusion.
5. We accordingly decline to answer the question referred to us and return the reference to the Sales Tax Tribunal.
6. The applicants will pay to the respondents the costs of this reference fixed at Rs. 150.
7. The fee of Rs. 100 deposited by the applicants will be appropriated towards the amount of costs awarded to the respondents.
8. Reference not answered.