CHANDRA REDDY C.J. - The question posed by this petition is whether a reference under section 66(1) of the Indian Income-tax Act abates when the legal representatives of the assessee are not brought on record within ninety days of his death.
Pending a reference under section 66(1) made by the Income-tax Appellate Tribunal at the instance of the Commissioner of Income-tax on the question :
'Whether on the facts and in the circumstances of the case the assessee was entitled for exemption contemplated in the notification No. 878 F. dated March 21, 1922, issued under section 60 of the Indian Income-tax Act as amended or added from time to time ?'
the assessee died. Obviously being unaware of this fact the department did not take any steps for nearly four years to bring the legal representatives of the assessee on record. It was only when we asked an inquiry to be made as to why the assessee was not represented before us and whether the assessee was alive or dead, the matter was enquired into and it was found that he died on September 1, 1957, shortly after the reference under section 66(1) was made to this court.
Thereafter, the Commissioner, after ascertaining the names of the legal representatives of the deceased assessee, filed the present application to bring the legal representatives on record.
The heirs of the deceased assessee, who are represented before us by their counsel, opposed the application on the objection that as the application was not presented within the time prescribed by the article 177 of the Limitation Act, the reference should be thrown out as having abated.
The point for decision is whether this objection is sound. It is to be borne in mind that it is only by reason of Order XXII, Civil Procedure Code, that in cases where a sole defendant dies and the right to sue survives his legal representatives should be made parties and the suit should proceed. Order XXII, rule 4(3), Civil Procedure Code, provides that if no application for this purpose is made within the time limited by law, the suit should abate as against the deceased defendant. It is article 177 of the Limitation Act that prescribes a period of ninety days for making such an application. There is no other law which enacts that the proceedings would abate in the event of the legal representatives of a party not being brought on record within the prescribed time. Thus, there is no question of abatement but for the combined application of the provisions of Order XXII, Civil Procedure Code, and article 177 of the Limitation Act. Order XXII, Civil Procedure Code, is specifically made applicable to appeals by rule II of that Order. It is, therefore, clear that Order XXII, Civil Procedure Code, would govern both suits and appeals. The very wordings of the provisions of that Order make it abundantly plain that they are not attracted to proceedings other than suit or appeal.
Our conclusion is reinforced by the wording of article 177 of the Limitation Act which prescribes ninety days from the date of death of defendant or the respondent for an application to have the legal representatives of the defendant or respondent made as parties. Thus, emphasis is laid down in the Civil Procedure Code and the Limitation Act on the defendant or respondent. That order XXII, Civil Procedure Code, is inapplicable to civil revision petitions under section 115, Civil Procedure Code, appears from Manickam v. Ramanathan. A fortiori, the provisions of that order would not be attracted to a reference under section 66 of the Indian Income-tax Act. There are no rules which have made Order XXII, Civil Procedure Code, applicable to such a reference. The position of an assessee in a reference under section 66 cannot be equated to that of a defendant or respondent.
Further, in answering a reference under section 66(1) of the Income-tax Act, the High Court merely acts in an advisory capacity. It is true that the advice is binding on the Tribunal by reason of section 66(5) and it has to implement the advice of this court. In these circumstances, it is difficult to posit that the failure of the Commissioner of Income-tax at whose instance a reference is made to bring the legal representatives of the assessee on the record in time would result in the abatement of the reference, This court is bound to answer the questions referred to this court irrespective of the presence of the legal representatives by this court so that the court would have the benefit of hearing the counsel on both sides. The heirs of the deceased assessee would come forward to assist the court in solving the problems that present themselves before the court in answering the reference. That being the position, there is no question of the reference abating for non-compliance with the provisions of the Order XXII, Civil Procedure Code, read with article 177 of the Limitation Act.
There is a strong current of authority in favour of this view. In Commissioner of Income-tax v. Varshani, a bench of the Allahabad High Court ruled that a reference does not abate by reason of the Commissioner not applying to bring the legal representatives of the deceased assessee on record within ninety days of his death. Similarly, in Kishori Lal Makundi Lal, In re, the same High Court decided that the mere death of the assessee at whose instance the reference was made would not preclude the High Court from answering the question of law formulated by the Commissioner. This is also the view expressed by the Patna High Court in Maharajadhiraja of Darbhanga v. Commissioner of Income-tax. Courtney Terrell C.J., who spoke for the bench, observed that a proceeding under section 66 of the Income-tax Act was not a suit and no question of abatement arose and the court had to deal with the reference whether or not his heirs appeared. To a like effect is the decision of Calcutta High Court in Sudha Tarangini Debya, In re.
For these reasons, we hold that the reference has not a abate by reason of the Commissioner not having initiated proceedings for bringing on record the legal representatives of the assessee within ninety days.
However, we order this petition, so that we may have the advantage of hearing the counsel for the heirs of the assessee.