Amar Chand Butail & Sons vs Income Tax Tribunal
1967 Latest Caselaw 105 Del

JUDGMENT

S.K. Kapur, J.

(1) Amar Chand Butail and Sons have made this application under section 66(2) of the Indian Income-Tax Act 1922, with a prayer that this Court should direct the Income-Tax Appellate Tribunal to refer three questions of law set out in paragraph 10 of the application to this Court. The application was filed in July, 1965.

(2) The learned counsel for the respondent has raised two objections to the maintainability of this petition. (1) Having regard to the provisions of the Delhi High Court Act. 1966, this Court has no Jurisdiction to entertain the application under section 68(2) of the Indian Income-Tax Act ; and (2) the only Respondent 1mpleaded in the application is the Income-Tax Appellate Tribunal The proper respondent ought to have been the Commissioner of Income-Tax and in the circumstances the application is nto maintainable.

(3) In M/S Sarafa Mull Rairoo Mull v. Commissioner Income-Tax Income-Tax Reference No. 5 of 1967 decided on June 13 1967, we have already held that this Court has jurisdiction in such matters. The first point must, therefore, be answered against the respondent.

(4) So far as the second point is concerned, the learned counsel lor the respondent faced with the difficulty that he had nto imp leaded the Commissioner Income-Tax as a party respondent presented an application to us on June 12, 1967, praying that the Commissioner Income-tax may be allowed to be brought on record as a respondent. The only ground set out in the application for amendment is that by an inadvertent m stake Commissioner of Income-Tax was nto added as a party. This application is nto even supported by an affidavit. No sufficient cause has been disclosed in the application for the condensation of delay of nearly two years. The application under Section 66(2) was earlier heard in the month of May, 1967 when buth the learned counsel for he parties conceded that this court had no advisory jurisdiction in income-tax matters. Since we wanted to satisfy ourseleves regarding the correctness of the contention we reserved orders and in the meantime we decided Saraf Mull's case holding that this court had jurisdiction. In spite of that no application for condensation was made till June 12,196/. We are satisfied that there exists no ground for condensation of delay in impleading the Commissioner of Income-Tax who was a necessary party. In Keshav Silk Mills v. Income Tax Appellate Tribunal, and Madan Lal v. Income-Tax Appellate Tribunal, it has been held by the Punjab High Court inter alia having regard to the rules framed by that court in this behalf that if Commissioner of Income-Tax is nto imp leaded as a party and no ground is shown for condensation of delay in so impleading the Commissioner, the application suffers from a fatal defect. Apart from the decisions mentioned above, section 66 of the said Act also appears to recognise only the Commissioner of Income-Tax and the assesses as the parties aggrieved. Any decision given by the High Court on an application under section 66(2) directly affects the Commissioner of Income-Tax and no decision can be rendered by the High Court against the Commissioner unless he is a party. Sub-section (5) of section 66 requires a copy of the judgment of the High Court to be sent to the Appellate Tribunal and the latter is enjoined to pass such orders as may be necessary to dispose of the case conformably to such judgment. If the Income Tax appellate Tribunal were required to be the only party in a reference, the provision for so sending of a copy would be unnecessary. Following the aforementioned two decisions of the Punjab High Court, we hold that ommission of the Commissioner of Income Tax from the array of respondents renders the application had in law.

(5) In these circumstances, this application is dismissed but parties arc left to bear their own costs.