1962 (1) TMI 79

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..... he assessee at whose instance the reference was made is absent at the hearing. 2. Section 66(5) of the Income Tax Act is in the following terms : The High Court upon the hearing of any such case shall decide the questions of law raised thereby and shall deliver its judgment thereon containing the grounds on which such decision is founded...... 3. We are inclined to hold that the terms of section 66(5) are not mandatory and that the High Court is not bound to answer the reference irrespective of the fact whether the assessee at whose instance the reference was made is absent. The nature of the jurisdiction exercised by the High Court under section 66 of the Income Tax Act is neatly summed up by Venkatarama Ayyar J. in a recent d .....

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..... to the question was negatived. In Madanlal Dharnidharka v. Commissioner of Income Tax Chagla J. extended the above principle to cases where the questions referred to are irrelevant or unnecessary. The same view is expressed by the Assam High Court in Jesraj Jivanram v. Commissioner of Income Tax. The learned Acting Chief Justice, Ram Labhaya, observe at page 258 in the following terms : But the court at the hearing, even though it has ordered the Tribunal to state a case on any question, retains the jurisdiction to decline to answer the question which is purely academic, or where the question is unnecessary or irrelevant. 5. We are inclined to follow these decisions and hold that in the excise of our advisory jurisdiction we are .....

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..... in my view, since the preliminary condition of the sub-section is not satisfied in such a case, the consequent obligation of deciding the questions of law and delivering a judgment does not also arise. 7. We are inclined to agree with this decision that it is not mandatory for the High Court to hear the reference when the assessee, at whose instance the reference was made, is absent. But we are not inclined to agree with the observations at page 191 that the court should not at all answer the reference. This identical question arose for decision in Tamarind Products, Vellore v. Commissioner of Income Tax. The learned judges explained the decision in M.M. Ispahani Ltd. v. Commissioner of Excess Profits Tax and observed as follows : .....

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