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ITR/330/1993 3/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
INCOME
TAX REFERENCE No. 330 of 1993
==============================================================
COMMISSIONER
OF INCOME TAX - Applicant(s)
Versus
CHOKSHII
VINODCHANDRA CHANDULAL - Respondent(s)
==============================================================
Appearance
:
MR
MANISH R BHATT for
Petitioner No(s).: 1.
NOTICE
SERVED for Respondent
No(s).:
1.
==================================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.A.MEHTA
and
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 23/08/2005
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE D.A.MEHTA)
Income
Tax Appellate Tribunal, Ahmedabad Bench ?SA?? has referred the
following question under Section 256(2) of the Income Tax Act, 1961
(the Act) at the instance of the Commissioner of Income Tax :
?SWhether on the facts
and in the circumstances of the case, the Appellate Tribunal is right
in law in setting aside the order made by the Commissioner of Income
Tax passed under Section 263 of the I.T.Act, 1961???
Though
the question is referred as directed by this Court, it is not
necessary to answer the question on merits as it is a question of
fact only. As laid down by the Apex Court in case of Commissioner
of Income Tax, West Bengal II v. Smt.Anusuya Devi, [1968] 68 ITR
750, ?SThe High Court may only answer a question referred to it
by the Appellate Tribunal: the High Court is however not bound to
answer a question merely because it is raised and referred. It is
well settled that the High Court may decline to answer a question of
fact or a question of law which is purely academic or has no bearing
on the dispute between the parties or though referred by the
Tribunal does not arise out of its order. The High Court may also
decline to answer a question arising out of the order of the
Tribunal, if it is unnecessary or irrelevant or is not calculated to
dispose of the real issue between the taxpayer and the department.
There is also no ground for restricting that power when by an
erroneous order the High Court has directed the Tribunal to state a
case on a question which does not arise out of the order of the
Tribunal. At the hearing of a reference pursuant to an order
calling upon the Tribunal to state a case, the High Court is not
bound to answer the question without considering whether it arises
out of the order of the Tribunal, whether it is a question of law,
or whether it is academic, unnecessary or irrelevant.?? This
position has been reiterated by the Apex Court in case of
Lakshmiratan Cotton Mills Co. Ltd. v. Commissioner of Income tax,
U.P. [1969] 73 ITR 634 and since then, has been consistently
followed and applied by various High Courts.
As
can be seen from the impugned order of Tribunal, the Tribunal has
recorded findings of fact based upon appreciation of evidence on
record. In these circumstances, the reference is declined to be
answered and stands disposed of accordingly.
[D.A.MEHTA,
J.]
[HARSHA
DEVANI, J.]
parmar*
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