9911796707
TMI Blog1955 (3) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... he reference came up for hearing sometime ago, we were informed that the identical point was pending consideration by the Supreme Court in an appeal taken to that Court from Bombay. The Supreme Court has since had occasion to decide the point in disposing of the Bombay appeal. It is not disputed that the present question is covered and concluded by the decision of the Supreme Court and that according to that decision, the question must be answered in the negative. Mr. Ginwala has, however, taken a subsidiary point on behalf of the assessees. He has contended that the reference to this Court was not made within ninety days of the receipt of the application for a reference, as required by section 66(1) of the Income-tax Act and that, accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case and that, upon those considerations, we should now review our former decision and decide in his favour. Mr. Ginwala's argument is a short and simple one and it can be put in the following way. He refers to the sixth sub-section of section 33 which says that save as provided in section 66, orders passed by the Appellate Tribunal on appeal shall be final. It is contended that the parties to an appeal before the Tribunal are entitled to retain the benefit of the appellate decision and if such benefit is to be taken away from them, it can be taken away only in strict accordance with the manner laid down in section 66. Unless it is done in accordance with section 66(1), the finality of an appellate decision of the Tribunal cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at pleasure. The true distinction between a provision which is directory and a provision which is mandatory is that, in the former case disregard of the provision does not by itself invalidate the act done, whereas in the latter case it does. The rule of conduct expected to be followed by the public authority addressed by the provision is however not different in the two cases. The difference lies only in the consequences of a breach. I have said so much only in order to allay the apprehensions of Mr. Ginwala that if the time-limit under section 66(1) was to be left at large, despite the clear provision contained in the section, the Tribunal might make any reference at any time and the assessees might find their income-tax affairs consig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ninetieth day in order to see if the Tribunal would yet make a reference was said to be no real difficulty, because even if the High Court was moved for a writ of mandamus after the lapse of ninety days, a writ could be issued directing the Tribunal to make a reference even at that stage, although the statutory duty required to be performed had not been performed within the time limited by the statute. I am not impressed by the aforesaid argument. As I pointed out when Mr. Ginwala was addressing us, it really begs the question and assumes that the direction contained in section 66(1) is mandatory. Nor do I consider it to be a practical answer to the difficulty referred to by the Privy Council in stating their proposition that members ..... X X X X Extracts X X X X X X X X Extracts X X X X
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