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TMI Blog1975 (2) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... led by the proposed legal representative it has been stated that the assessee had died not on the date aforesaid, but on the 26th February, 1973. The legal representative proposed to be substituted is the widow of the assessee, and thus she is in a better position to know about the date of death of the assessee who happened to be her husband. On her behalf it has been contended that the present application was made long after the period of ninety days allowed by article 177 of the Limitation Act which corresponds to article 120 of the new Limitation Act, 1963, and for that reason in view of Order XXII, rule 4 of the Code of Civil Procedure, the case has abated as a whole. Learned counsel for the petitioner has, however, contended that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Act, the case did not abate by not substituting the legal representative within 90 days. Their Lordships further held that articles 176 and 177 of the Limitation Act had no application to a case of reference under the Act because they deal with the representatives of a deceased plaintiff or a deceased defendant or the legal representatives of a deceased appellant or a deceased respondent. A similar view was taken in the Rajasthan case. It was held in that case that the High Court does not exercise either original or appellate jurisdiction but only an advisory or consultative jurisdiction in cases of reference under section 66(2) (now section 256), and, therefore, such a reference is not a civil proceeding within the meaning of sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon to answer the same question as in the instant case. Courtney Terrell C.J. said that proceedings before the High Court on reference under section 66(2) of the Act is not a suit and no question of abatement, therefore, arises. The learned Chief justice said further that the High Court was bound to deal with a reference whether or not the assessee or his heirs appear. Das J. relied on a decision in the case of Smith v. Williams for the proposition that " where the proceedings have once commenced, they must go forward until adjudicated upon, notwithstanding the death of the assessee after the commencement of the proceedings, and that if there be no procedure entitling the legal representative of the assessee to continue the proceedings, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought against the judgment of the High Court answering the question referred and, therefore, in its advisory jurisdiction. The jurisdiction which this court exercises in appeal is of the same character and, therefore, any question which was not referred to the High Court cannot be allowed to be raised at this stage." I do not, however, base my conclusion on the premises that section 141 of the Code has no application because it is not a civil proceeding within the meaning of that section. It is not necessary for me to express any opinion on that point for the purpose of disposal of the present case. As I have said neither Order XXII of the Code applies nor does article 120 of the Limitation Act, 1963. Therefore, there can be no abatement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Order XXII of the Code applicable to cases of reference. I will do well, however, to point out that in respect of the appeal to the Supreme Court, section 262 of the Act clearly states that the provisions of the Code relating to appeals to the Supreme Court shall, so far as may be, apply in the case of appeals under section 261 of the Act as they apply in the case of appeals from decrees of a High Court. It is significant that in respect of appeals to the Supreme Court, the Code in its relevant parts is made applicable, but in respect of reference to the High Court it is not. A reference to some of the sections of the Act will further show that there are some other provisions which make relevant provisions of the Code applicable to pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions alone thereof applicable to proceedings under the Act. The conclusion is obvious that only those provisions of the Code which have been specifically made applicable to proceedings under the Act do apply. There is another way of looking at this and that is, that abatement of a suit or appeal after a certain time is in the nature of penalty which is the result of non-compliance with the statutory provision of law. It results in the extinguishment of the right of a plaintiff or an appellant to prosecute the suit or appeal any further. In the absence of any such penal provision in the Income-tax Act, it would be unfair to read such a provision contained in the Code as incorporated in the Income-tax Act and thereby saddle a litigant with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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