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TMI Blog1966 (8) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... lth-tax Act, the value of ancestral property is assessable in the hands of the sole surviving coparcener, whose family consists of wife and daughter, in the status of an individual ? " The assessee has filed an application for being permitted to withdraw the reference saying that he is no longer interested in "prosecuting the reference". Shri Tankha, learned counsel appearing for the assessee, also prayed that the assessee be allowed to withdraw the reference. Shri Khirwadkar, learned counsel appearing for the department, stated that the depart ment had no objection if the question referred for the decision is not answered because of the unwillingness of the assessee to proceed further in the reference made at his instance. The question, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ference being answered or makes an application for withdrawing the reference, then this court is not bound to answer the question referred and can decline to answer the reference. This is clear from sub-section (6) of section 27, which says : " The High Court, upon hearing any such case, shall decide the question of law raised therein......" A question of law referred to the High Court can, therefore, be decided only after the hearing of the case stated. If, therefore, the party, at whose instance a reference has been made, fails to appear or appears and submits that it is not interested in the reference being answered or prays for withdrawing the reference and does not address any arguments and thus there is no hearing of the case, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce was made, does not appear at the hearing of the reference. The learned Chief justice of the Calcutta High Court, after referring to section 66(5) of the Indian Income-tax Act, 1922, said ; " It will be noticed that the section is expressed in mandatory language and deploys the word 'shall' throughout its many clauses. Prima facie, therefore, it would seem that upon a reference being received it becomes an obligation of the High Court to answer the question referred and take the further steps mentioned in the section and it becomes equally the obligation of the Appellate Tribunal to adjust its order, if necessary, to the opinion which the High Court may express on the question concerned. It seems to me, however, in spite of the apparen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty who has caused a reference to be made does not appear at the hearing, the court is not bound to answer the question and should not do so, and the position would be the same when the party does enter an appearance but only to submit that he is not interested in the reference being answered. In Karnani Industrial Bank Ltd. v. Commissioner of income-tax, it has been held by the Calcutta High Court that there is no provision in the Income-tax Act under which the party who has caused a reference to be, made can be allowed to withdraw it after the Tribunal has made a reference to the High Court ; and that the reference must be decided by the High Court unless the party who has caused the reference to be made fails to appear and to take any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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