9911796707
TMI Blog1994 (9) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... rried on tapioca cultivation in about 50 hectares of land obtained by him on lease from the forest department. The assessee's case was that he had not derived any income from tapioca during the accounting year, his case being that the variety of tapioca cultivated by him took a longer time to mature and, therefore, income from the tapioca cultivated was not received during the relevant accounting period. The assessing authority did not accept this contention and made an assessment which included an estimated income from tapioca of Rs. 82,850. The assessee took up the matter in appeal before the Appellate Assistant Commissioner of Agricultural Income-tax and Sales Tax, Palghat, who dismissed the appeal. The contention of non-receipt of incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before him, about the inclusion of the income from the property of some minors in the assessment. Curiously, however, the Appellate Assistant Commissioner did not take note of the fact that the assessee had challenged the assessment impugned before him, in revision and lost, which by itself was bound to prove fatal to the appeal. Curiously again, when the matter came up in appeal before the Tribunal, none brought the revisional order to the notice of the Tribunal and no contention was raised that the assessability or otherwise of the tapioca income was already the subject of decision by the Commissioner. The Tribunal allowed the appeal, as mentioned earlier, in ignorance of the Commissioner's order in the parallel revision petition. The Rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed before the Tribunal and, therefore, questions Nos. 1 and 3 were not liable to be referred to this court. But the Tribunal stated that the question raised was an important one, which required a decision by the High Court and accordingly referred the question extracted by us earlier for the opinion of this court. Question No. 2 was not referred. Income-tax Reference No. 40 of 1990 is the reference so made. The Revenue felt aggrieved that the questions required by it had not been referred to this court in the way it wanted it, and, therefore, filed O. P. No. 8837 of 1990, to compel reference of the three questions of law framed by it under section 60(2) of the Act. We have heard both the cases together. The point highlighted before us b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before it, it could not be said to arise out of the order of the Tribunal. The contention of the assessee is that the question now raised was not at all raised before the Tribunal and, therefore, the Tribunal had no occasion to deal with the same. What exactly is a question arising out of the order of the Tribunal was explained by the Supreme Court in CIT v. Scindia Steam Navigation Co. Ltd. [1961] 42 ITR 589 (SC) ; AIR 1961 SC 1633. The Supreme Court summarised the position thus in paragraph 31 (at page 611 of 42 ITR) : " (1) When a question is raised before the Tribunal and is dealt with by it, it is clearly one arising out of its order. (2) When a question of law is raised before the Tribunal but the Tribunal fails to deal with it, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal. The Tribunal referred the question only because it was an important question of law on which a decision of this court was required. But the Tribunal failed to note the parameters of a reference under section 60(1). No question of law, however important it may be, can be referred, unless it arises out of its order. The Tribunal did not find that the question arose out of its order. The question was referred only because it was an important one. The reference is, therefore, incompetent and the question referred cannot be dealt with under section 60(1) of the Act. The reference has to be rejected as such. So far as Original Petition No. 8837 of 1990 is concerned, the only contention raised by the learned Government pleader for the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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