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TMI Blog1976 (12) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... rehearing the reference made under section 66(1) of the Indian Income-tax Act, 1922 (hereinafter referred to as " the Act "). The assessee-appellant is carrying on business in soap stones. At the instance of the appellant, the following two questions were referred to the High Court by the Tribunal under section 66(1) of the Act. " 1. Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was justified in holding that the property in the goods passed to the customers in erstwhile Part 'A' and 'C' States, because the railway receipts in respect of the sale of goods of the value (sic) of Rs. 94,037 were made out in the name of 'self' and were sent to the purchasers in erstwhile Part ' A ' and 'C' St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had misplaced the notice received from the High Court, while proceeding on leave and handing over the charge to another clerk, discovered, on September 21, 1970, that the above-mentioned notice had been received from the High Court. Counsel was then engaged on behalf of the assessee-appellant. On enquiry it was found that the matter had been disposed of on August 26, 1970. On September 24, 1970, an application was filed on behalf of the appellant stating that the paper books had not been filed because of a bona fide mistake. Prayer was made for permitting the appellant to file the paper books and for rehearing the reference. The High Court, as per order dated February 22, 1971, dismissed the aforesaid application after observing that it ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und to dispose of the appeal on merits even though a party is not present, likewise the High Court when a question of law is referred to it, should dispose of the reference on merits and answer the question referred to it. In our opinion, it is not essential to express an opinion about this aspect of the matter, because we are of the opinion that the High Court was not functus officio in entertaining the application which had been filed on behalf of the appellant for rehearing the reference and disposing of the matter on merits. A party or its counsel may be prevented from appearing at the hearing of a reference for a variety of reasons. In case such a party shows, subsequent to the order made by the High Court, declining to answer the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the person who meets with an accident. To hold that in such a case the High Court cannot recall the said order and pass an order for the disposal of the reference on merits, even though full facts are brought to the notice of the High Court, would result in obvious miscarriage of justice. It is to meet such situations that courts can exercise in appropriate cases inherent power. In exercising inherent power, the courts cannot override the express provisions of law. Where however, as in the present case, there is no express or implied prohibition to recalling an earlier order made because of the absence of the party and to directing the disposal of the reference on merits, the courts, in our opinion, should not be loath to exercise such ..... X X X X Extracts X X X X X X X X Extracts X X X X
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