D. M. Chandrashekhar, J. - In this application under Section 256(2) of the Income Tax Act, 1961, (hereinafter referred to as the Act) the applicant-assessee has prayed for a direction to the Income Tax Appellate Tribunal (shortly called the Tribunal) to refer three questions of law.
2. The first of such question is whether the Tribunal was legally correct in holding that the advance tax order and notice of demand under Section 18-A (1) of the Indian Income Tax Act, 1922, were not rendered void even though they suffered from an unrectifiable infirmity. This question is in our opinion, undoubtedly a question of law and arises from the appellate order of the Tribunal. Hence we direct Tribunal to refer this question to this Court with a statement of the case.
3. The second of those questions is not shown to have been urged before the Tribunal to refer the question to this Court.
4. Though the third of those questions was also not urged before the Tribunal, Shri R. K. Gulati, learned counsel for the applicant, submitted that that question formed merely an aspect of the first question which was undoubtedly urged before the Tribunal and that hence we should direct the Tribunal to refer it (the third question) also. In support of this contention he relied on the following observations of the Supreme Court in Raja Sharda Narain Singh vs. Commissioner of Income Tax, U.P., (1968) 68 Income Tax Reports 209 at page 213 :
'It appears from the order of the Appellate Tribunal that they considered the question whether the income could be held to be the income of the relevant accounting year. This question was a wide question and included the aspect which is now being put in the forefront. It is true that the cases relied upon by Mr. Desai were not mentioned by the Appellate Tribunal but we are unable to agree with the learned counsel for the respondent that an aspect of a question cannot be the subject matter of a reference, if that aspect is not considered by the Appellate Tribunal.'
We find it difficult to accept the contention of Shri Gulati that in the present case the third question constitutes only an aspect of the first question which was undoubtedly urged before the Tribunal. As laid down by the Supreme Court in Commissioner of Income Tax, West Bengal vs. Smt. Anusuya Devi (A.I.R. 1968 S.C. 779 at page 782), when the Tribunal is not invited to state a case on a question of law alleged to arise out of its order, the High Court cannot direct the Tribunal to state it on that question; the reason of the rule is that the High Court cannot hold that the decision of the Tribunal on a particular question is incorrect if the Tribunal was not asked to consider whether the question arose out of its order and whether it was a question of law.
5. Hence we direct the Tribunal to refer only the following question of law to this Court with a statement of the case :
'Whether the Tribunal was legally correct in holding that the advance tax order and the notice of demand under Section 18-A (1) of the Indian Income Tax Act, 1922, was not rendered void even though the same suffered from an unrectifiable infirmity.'
6. The parties will bear their own costs in this application.