Satish Chandra, J. - These nine applications involve the question whether the assessee was exempt from tax under S. 10(22) of the Income Tax Act, 1961, on the ground that it was an educational institution. For some years this plea was not taken initially before the Income-tax Officer while in other years it was repelled by him. In appeal also the plea failed although the assessee succeeded on another question viz, whether in respect of its income on securities the assessee was entitled to deduction of interest paid on borrowed money. The matter went up to the Tribunal by way of an appeal in respect of the question of allowable deduction from the interest on securities-income while the question of exemption under S. 10(22) was taken up in the cross-objection filed by the assessee.
2. The assessee did not file any application for reference under S. 256(1) of the Act in respect of the question relating to exemption under S. 10(22) of the Act. The Department, however, asked for reference on the question relating to the deductibility of interest. At that time the counsel for the assessee also asked the Tribunal to refer the question relating to exemption under S. 10(22) to this Court. The Tribunal declined.
3. The assessee has now made these nine applications u/s. 256(2) of the Act in respect of the years 1957-58 to 1965-66. In Commissioner of Income Tax vs. Motilal Padampat Sugar Mills Co. Ltd., Kanpur, it has been held by this Court that a question which was decided in the appeal of the assessee could not be heard while hearing a reference arising out of the appeal filed by the Department. This principle of law therefore debars the assessee from asking the Tribunal to make a reference on a question on which no application was made under S. 256(1) of the Act.
4. It was argued by learned counsel for the assessee that as a result, of the Tribunals order the assessee had completely succeeded and that there was no occasion to file an application for reference. We are not satisfied that as a result of the Tribunals finding that the assessee was entitled to deduction of the interest paid by it to its employees out of the income chargeable under the head 'interest on securities', the assessee was able to obtain total exemption from taxability. The assessment orders show that the assessee co-operative society was held liable to tax in respect of several other sources of income. It cannot hence be said that the assessee had completely won and, therefore, had no cause of action for applying for reference. Having failed to apply form a reference under S. 256(1) the assessee is debarred from applying under S. 256(2) to this Court. The applications are accordingly dismissed but we make no order as to costs.