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Juggilal Kamlapat Vs. Commissioner of Income-tax - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtAllahabad High Court
Decided On
Case NumberMisc. Income-tax Application No. 511 of 1962
Judge
Reported in[1970]75ITR248(All)
ActsIncome Tax Act, 1922 - Sections 66(1), 66(2), 66(4) and 66(5)
AppellantJuggilal Kamlapat
RespondentCommissioner of Income-tax
Appellant AdvocateC.S.P. Singh, Adv.
Respondent AdvocateShanti Bhushan, Adv. General and ;R.R. Misra, Adv.
Excerpt:
.....to enable it to determine the question raised thereby, the court may refer the case back to the appellatetribunal to make such additions thereto or alterations therein as the courtmay direct in that behalf. .shall pass such orders as are necessary to dispose of the case conformably to such judgment' clearly show that the case, which is to be disposed of, is one before the tribunal. section 66(2) of the act given an assessee and the commissioner of income-tax a legal right to move this court and to get a reference made to it if the high court is satisfied that the decision of the tribunal is not correct. this view finds further support from sub-section (4) of section 66. which provides that :if the high court is not satisfied that the statements in a case referred under this section..........to enable it to determine the question raised thereby, the court may refer the case back to the appellatetribunal to make such additions thereto or alterations therein as the courtmay direct in that behalf. (5) the high court upon the hearing of any such case shall decide the questions of law raised thereby and 'shall deliver its judgment thereon containing the grounds on which such decision is founded and shall send a copy of such judgment under the seal of the court and the signature of the registrar to the appellate tribunal which shall pass such orders as are necessary to dispose of the case conformably to such judgment ...' 7. we have already pointed out earlier that in the present case the high court had already decided the questions of law referred to it by means of i.t.r. no......
Judgment:

Jagdish Sahai, J.

1. These applications have been made under Section 66(2) of the Indian Income-tax Act, 1922 (hereinafter called 'the Act'). The assessee, Juggilal Kamlapat, are the bankers and carry on thebusiness of banking. Assessment proceedings were taken against them for the years 1940-41 to 1946-47. The matter went up to the Income-tax Tribunal (hereinafter referred to as' the Tribunal'). After the Tribunal had decided the second appeal under Section 33 of the Act, an application was made by the assessee for the submission of a statement of case and certain questions of law to this court under Section 66(1) of the Act. The application was allowed in respect of some questions, but dismissed in respect of the rest. The Tribunal made a statement of the case and referred some questions of law to this court. That reference was numbered as I.T.R. No. 167 of 1955. While the reference was still pending, the assessee made applications requesting this court to require the Tribunal to state the case and refer the other questions in respect of which they had applied to the Tribunal and which the Tribunal had not referred. The assessee, however, filed these applications under Section 66(4) of. the Act. These applications came up before a Bench of this court which dismissed them on the ground that those applications were not competent under Section 66(4) of the Act and could only lie under Section 66(2) of the Act. Reliance was placed by the court on the decision of the Supreme Court in Kamlapat Motilal v. Commissioner of Income-tax, [1962] 45 I.T.R. 266 (S.C.).

2. Some time in July, 1962, the instant applications were made, but since they were barred by time, application under Section 5 of the Indian Limitation Act was also simultaneously made.

3. I.T.R. No. 167 of 1955 was answered by this court on September 17, 1962, and the Tribunal implemented the order of this court under Section 66(5) of the Act on May 15, 1964. This order was passed in the presence of the parties. Thereafter, that order was rectified by the Tribunal on August 25, 1965, again in the presence of the parties.

4. The applications made under Section 5 of the Indian Limitation Act in connection with the instant applications were allowed on September 5, 1963, and these applications have now come up for orders.

5. One of the questions that arises in connection with the disposal of these cases is whether they have not become infructuous and even after the Tribunal had acted under Section 66(5) of the Act and reshaped the appellate order in accordance with the opinion of this court, a second reference can be called for an answer, thus opening up once again the order of the Tribunal passed subsequent to the opinion given by this court while answering I.T.R. No. 167 of 1955 on September 17, 1962.

6. Section 66 of the Act, so far as relevant for our purposes, reads :

'66. Statement of case by Appellate Tribunal to High Court.--(1) Within sixty days of the date upon which he is served with notice of an order under Sub-section (4) of Section 33, the assessee or the Commissioner may, by application . ..require the Appellate Tribunal to refer to the High Court any question of law arising out of such order, and the Appellate Tribunal shall within ninety days of the receipt of such application draw up. a statement of the case and refer it to the High Court: ...

(2) If on any application being made under Sub-section (1) the Appellate Tribunal refuses to state the case on the ground that no question of law arises, the assessee or the Commissioner, as the case may be, may, within six months from the date on which he is served with notice of the refusal, apply to the High Court, and the High Court may, if it is not satisfied of the correctness of the decision of the Appellate Tribunal, require the Appellate Tribunal to state the case and to refer it, and on receipt of any such requisition the Appellate Tribunal shall state the case and refer it accordingly ....

(4) If the High Court is not satisfied that the statements in a casereferred under this section are sufficient to enable it to determine the question raised thereby, the court may refer the case back to the AppellateTribunal to make such additions thereto or alterations therein as the courtmay direct in that behalf.

(5) The High Court upon the hearing of any such case shall decide the questions of law raised thereby and 'shall deliver its judgment thereon containing the grounds on which such decision is founded and shall send a copy of such judgment under the seal of the Court and the signature of the Registrar to the Appellate Tribunal which shall pass such orders as are necessary to dispose of the case conformably to such judgment ...'

7. We have already pointed out earlier that in the present case the High Court had already decided the questions of law referred to it by means of I.T.R. No. 167 of 1955 and that the Tribunal had already passed necessary orders to dispose of the case conformably to the judgment of the High Court. The question requiring consideration is that once the Tribunal has already passed orders to dispose of the case in conformity with the judgment of this court dated September 17, 1962, will it still be possible to ask the Tribunal to submit a fresh statement of case and fresh questions of law for the court's opinion and thus require the Tribunal once again to pass orders in conformity with the judgment now to be given ?

8. The submission of the learned Advocate-General, who has appeared on behalf of the income-tax department, is that once a case has been disposed of by the Tribunal in accordance with the decision of this court, the judgment so amended by the Tribunal becomes final and cannot again be reopened for additions or subtractions. Section 33(6) of the Act provides that:

'Save as provided in Section 66 orders passed by the Appellate Tribunal on appeal shall be final.'

9. It is contended that once an order is passed by the Tribunal under Section 66(5) of the Act in conformity with the judgment of this court, the Tribunal's judgment or order becomes final and the matter cannot be reopened.

10. Reading the provisions of Section 66 of the Act carefully it appears to us that the law contemplated one order by the High Court and not successive orders. It did not also contemplate the Tribunal successively amending its judgment in conformity with the successive judgments of this court. The words ' the Appellate Tribunal. . . shall pass such orders as are necessary to dispose of the case conformably to such judgment' clearly show that the case, which is to be disposed of, is one before the Tribunal. It is true that the word ' case ' has been used even with regard to the reference made to the High Court either under Section 66(1) or 66(2) of the Act, but there the word ' case ' is preceded by the word ' such '. In the case of the Tribunal the word ' case ' is preceded by the word 'the'. In our opinion, therefore, the words ' dispose of the case ' refer to the case pending before the Tribunal, that is, the appeal. The legislature had deliberately not used the word 'appeal ' because the appeal had already been disposed of. It has used a more comprehensive word, 'case', in the sense of the proceedings which open up before the Tribunal consequent to an order passed by the High Court deciding the questions of law referred to it.

11. On the plain reading of Section 66, we might have thought that the law contemplated only one reference and one answer and, therefore, one order under Sub-section (5) of Section 66 of the Act. This could be possible only if it were held that such questions as the Tribunal refused to submit to the High Court under Section 66(1) of the Act could be called for under Section 66(4) of the Act and that Sub-section (2) of Section 66 applied only to such cases were the application under Section 66(1) has been completely refused and no question at all has been submitted for the opinion of the court. But in view of the decision of the Supreme Court in Kamalapat Motilal v. Commissioner of Income-tax, we must proceed on the footing that, even in respect of questions which though asked to be referred under Section 66(1) of the Act, but have not so far been submitted, the application under Section 66(2) of the Act would have to be made. The result, therefore, would be that it is possible by the time the application under Section 66(2) of the Act has been made and disposed of, the reference made under Section 66(1) of the Act has already been answered. Such an eventuality can be contemplated because Sub-section (2) of Section 66 gives six months' period of limitation unlike Sub-section (1) where the period of limitation is sixty days. Besides, the starting point of limitation in the two sub-sections is different.

12. Whereas under Sub-section (1) it is sixty days from the date upon which the service is made of the notice of an order under Section 33(4) of the Act, under Sub-section (2) it is six months from the date of service of notice of the refusal to make the statement of the case. The result of this would be that there can be cases where a reference has been disposed of even before an application under Sub-section (2) of Section 66 of the Act has been made or before it has been disposed of or before a reference under that provision has been made by the Tribunal. Section 66(2) of the Act given an assessee and the Commissioner of Income-tax a legal right to move this court and to get a reference made to it if the High Court is satisfied that the decision of the Tribunal is not correct. In this view of the matter it is difficult to escape the conclusion that an application under Section 66(2) of the Act can be made or disposed of or a statement of case called for even after a reference under Section 66(1) of the Act has been disposed of, provided that the application under Section 66(2) of the Act has been made in time as provided by the law. If such an application can be made and a reference called for then we have to read Sub-section (5) of Section 66 as to mean that the Tribunal will have to reopen the matter and pass a fresh order in conformity with the decision of this court on the question of law submitted for the opinion of the court under Section 66(2) of the Act. This view finds further support from Sub-section (4) of Section 66. which provides that :

' If the High Court is not satisfied that the statements in a case referred under this section are sufficient to enable it to determine the question raised thereby, the High Court may refer the case back to the Appellate Tribunal to make such additions thereto or alterations therein as the court may direct in that behalf.'

13. The use of the word 'statements' in plural suggests that this subsection refers to two statements in the same case, one under Section 66(1) and another under Section 66(2). It follows, therefore, that if the two statements of the case come before the High Court not simultaneously but one after the other, the court will dispose them of separately and the Tribunal, therefore, also will have to pass two separate orders under Section 66(5) of the Act.

14. In our opinion, these petitions have not become infructuous.


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