1. Though the questions were referred to this Court under Section 66(1), Income-tax Act on the application of the assessee, he was absent all through, both before the Tribunal and before us. The learned counsel for the respondent referred to the decision of Chakravartti C. J. and Lahiri J. in M.M. Isphani Ltd. v. Commr. of Excess Profits Tax, W.B., : 27ITR188(Cal) (A) and invited us to record that we refrain from answering the questions referred to us on the short ground that the assessee defaulted appearance.
2. We respectfully agree with the learned Chief Justice, that the apparent mandatory language of Section 66(5), which requires that the Court shall decide the questions of law raised in a case referred to it under Section 66(1), is no bar to a refusal to answer the questions should the circumstances of the case necessitate it. The conclusion of the learned Chief Justice in M. M. Isphani Ltd. v. Commissioner of Excess Profjts Tax, : 27ITR188(Cal) (A) Was,
'It appears to me, therefore, that it is not required of us that we should answer the question referred to us in this reference at all, since the assessees are hot appearing before us.' Earlier at page 191 (of ITR) : (at p. 370 of AIR), the learned Chief Justice observed,
'It appears to us that when the party who had caused a reference to be made chooses not to appear at the hearing this Court is not bound to answer the question and should not do so.'
In view of the final conclusion recorded by the learned Chief Justice, we do not understand him to have laid down as an inflexible rule, even of practice, that where the assessee defaults appearance before the Court, it has no option but to refuse to answer the question referred to it. The jurisdiction to refuse to answer the question Ss there. But its exercise in any given case is a question of discretion.
3. In the circumstances of this case we refrain from answering the questions referred to us.The assessee will pay the costs of this reference.Counsel's fee Rs. 250.