D. B. Income Tax Reference v. Mannalal Jhakhar

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. D. B. INCOME TAX REFERENCE NO.1/2010 C.I.T. - III, JAIPUR V. MANNALAL JHAKHAR. DATE OF ORDER ::: 12.03.2012 HON'BLE MR. JUSTICE A. M. SAPREHON'BLE MR. JUSTICE C. M. TOTLA Mr. K.K.Bissa, for Petitioner. This is an application made by the Commissioner ofIncome Tax, Revenue, under Section 256 (2) of the IncomeTax Act, 1961 (hereinafter referred to as 'the Act of 1961'),which arise out of the order dated 14.10.2004 passed bythe I.T.A.T. in two reference applications No.95/JP/1998and 186/JP/1998, in relation to block assessment year1986-87 to 1996-97 made by assessee and Revenue(C.I.T.). Facts of the case are these. The Commissioner of Income Tax, as also theassessee, moved an application under Section 256 (1) ofthe Income Tax Act before the Tribunal, praying for makinga reference to this Court to answer the questions proposedby them arising out of the order of the Tribunal dated 30[th]of September, 1998, passed in ITSSA No.31/JP/97 arisingout of the Block assessment year dated 25.03.1997 for theBlock period 1986-87 to 1996-97 in relation to respondent-assessee in their respective applications. By order under consideration, the Tribunal partlyallowed the applications made by the Commissioner ofIncome Tax and also the application made by the assesseeand, accordingly, following two questions were referred tothis Court for answer on its merits under Section 256 (1) :- “(1) Whether as per theprovisions of section 158BB(1) ofthe Income Tax Act, 1961 theadditions can be made of thebasis of the material orinformation collected during thecourse of enquiry, or assessmentinvestigation consequent uponthe requisition u/s.132A of theAct. (2) Whether the remand ofthe issue by the tribunal relatingto addition of Rs.33,10,423/- inrespect of alleged unexplainedinvestment in gold and silver inpreceding years was justified.” The aforementioned two questions are now referred tothis Court in ITR No.2/2007 which is pending for its finaldisposal. Now, in this application, made by the Commissioner,they contend that remaining questions proposed by themshould have been also referred to this Court for answerunder Section 256 (1), along with above-mentionedquestions, already referred by the Tribunal to this Court. Inother words, contention is that all the questions proposedby the Commissioner of Income Tax should have beenreferred to this Court for answer, rather than only the onewhich is referred. So far as assessee is concerned, though he too hadproposed more questions than the one referred to thisCourt, but he seems to be satisfied with the questionreferred to this Court for answer by the Tribunal and,therefore, he has not filed any application under Section256 (2) of the Income Tax Act. We have perused the entire record of the case,including the order under consideration, by which theapplications made by both assessee and Commissioner ofIncome Tax were partly allowed. In our opinion, the questions referred to this Court,quoted supra, which are now subject-matter of pendingIncome-tax Reference No.2/2007 covers the entirecontroversy which was decided by the Tribunal in an appealby their order dated 30[th] of September, 1998, out of whichthis reference arises and, therefore, the questions proposedby the revenue need not be called from Tribunal. In otherwords, the questions proposed by the Commissioner ofIncome Tax need not be referred to this Court, in the lightof the questions framed and referred to this Court by theTribunal which really covers the entire controversy. Accordingly and in the light of the foregoingdiscussion, we are not inclined to allow the application andcall for more proposed questions by the Commissioner ofIncome Tax. In our opinion, the questions referred to this Court,quoted supra, which are now subject-matter of pendingIncome-tax Reference No.2/2007 covers the entirecontroversy which was decided by the Tribunal in an appealby their order dated 30[th] of September, 1998, out of whichthis reference arises and, therefore, the questions proposedby the revenue need not be called from Tribunal. In otherwords, the questions proposed by the Commissioner ofIncome Tax need not be referred to this Court, in the lightof the questions framed and referred to this Court by theTribunal which really covers the entire controversy. Accordingly and in the light of the foregoingdiscussion, we are not inclined to allow the application andcall for more proposed questions by the Commissioner ofIncome Tax. As a consequence, the application made by theCommissioner of Income Tax, Revenue, under Section 256(2) of the Income Tax Act, calling for the question of law foranswer, is devoid of merit and it is accordingly dismissed.No cost. (C. M. TOTLA), J. (A.M.SAPRE), J. scd