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PETITIONER: THE KESHAV MILLS CO.  LTD.

       Vs.

RESPONDENT: COMMISSIONER OF INCOME-TAX, BOMBAY NORTH

DATE OF JUDGMENT: 08/02/1965

BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) SUBBARAO, K. WANCHOO, K.N. HIDAYATULLAH, M. SHAH, J.C. SIKRI, S.M. BACHAWAT, R.S.

CITATION:  1965 AIR 1636            1965 SCR  (2) 908  CITATOR INFO :  R          1966 SC1466  (7)  RF         1967 SC1643  (120)  R          1968 SC 779  (12)  R          1970 SC2067  (14)  R          1972 SC 236  (5)  F          1972 SC1880  (3,27,49)  RF         1972 SC1982  (91)  R          1976 SC1141  (5)  RF         1980 SC2056  (61)  F          1989 SC1298  (7)  R          1989 SC1933  (24)

ACT: Indian  Income-tax Act (11 of 1922), s. 66(4)-Power of  High Court  to ask Tribunal to submit supplementary statement  of case  after  further investigation of  facts-Stare  decisis- Power  of  Supreme  Court  to  review  and  revise   earlier judgments-When should be exercised.

HEADNOTE: The  appellant  was a company registered  in  the  erstwhile Baroda State.  In connection with the assessment year  1942- 43  the Income-tax Officer Ahemdabad held that certain  sale proceeds were received by the appellant in British India and the  profit thereon was taxable under the Indian  income-tax Act, 1922.  One of the items in dispute related to the sale- proceeds  collected by collecting cheques on  British  India Shroffs  and  Merchants.  In respect of the  said  item  the Appellate  Assistant Commissioner as well as  the  Appellate Tribunal  decided  against the  appellant,  and  thereafter, reference  was made to the High Court.  The High Court  felt that  it required further facts to decide the reference  and twice remanded the case to the Tribunal for investigation of those facts.  The Tribunal after taking evidence submitted a supplementary  Statement of Case on each occasion.   Finally the  High Court decided the question against the  appellant, but  granted  it a certificate of fitness to appeal  to  the

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Supreme Court. It  was contended on behalf of the appellant that  the  High Court had no jurisdiction to direct the Tribunal to  collect additional material and make it a part of the  supplementary Statement of Case under s. 66(4) as had been decided by this Court  in the cases of the Petlad Co. and the  New  Jahangir Mills.  On behalf of the Revenue it was contended that these two cases required reconsideration.  The Court therefore had to consider whether it should review and revise its  earlier view taken in the said two cases. HELD  : (i) The view contended for on behalf of the  Revenue namely, that the High Court had power to ask the Tribunal to investigate   further  facts  and  submit  a   supplementary Statement  of Case was a reasonably possible view.   But  on the other hand the opposite view taken by this Court in  the Petlad  Co.  case and the New jahangir Mills case  was  also reasonably  possible.  The latter view had been followed  by this  Court  on several occasions and it had  regulated  the procedure  in reference proceedings in the High Courts  ever since  the  decision  in the New  Jahangir  Mills  case  was pronounced.  Besides, no reported decision had been cited at the  bar  where the question about the  constitution  of  s. 66(4) was considered and decided in favour of the view  con- tended  for by the Revenue.  No case therefore was made  out for  a  revision or review of the Court’s decisions  in  the Petlad Co. and New Jahangir Mills cases. [928 C-F] Case law discussed. The New jahangir Vakil Mills Ltd. v. Commissioner of Income- tax,  Bombay  North,  [1960] 1 S.C.R. 249  and’  The  Petlad Turkey Red Dye                             909 Works  Co.  Ltd.   Petland v.  Commissioner  of  Income-tax, Bombay, Ahemdabad, [1963] Supp.  1 S.C.R. 871, affirmed. (ii) The  principle of stare decisis cannot be pressed  into service in cases where the power of this Court to reconsider and  revise its earlier decisions is invoked,  because  that power is inherent in this Court; but nevertheless the normal principle  that judgments pronounced by this Court would  be final  cannot be ignored.  Unless considerations of a  subs- tantial and compelling character make it necessary to do  so this  Court  should  and would be reluctant  to  review  and revise its earlier decisions. [923 B-D] Bengal  Immunity  Company Ltd. v. State of  Bihar  [1955]  2 S.C.R. 603, distinguished. (iii)     If  the  Court  is  satisfied  that  its   earlier decision  was clearly erroneous, it should not  hesitate  to correct  the  error;  but  before  a  previous  decision  is pronounced to be plainly erroneous, the Court must be satis- fied  with  a fair amount of unanimity amongst  its  members that a revision of the said view is fully justified.  It  is not  possible  or  desirable, and in any case  it  would  be inexpedient  to lay down any principles which should  govern the  approach of the Court in dealing with the  question  of reviewing  and  revising its earlier  decisions.   It  would always  depend upon several relevant considerations-What  is the  nature of the infirmity or error on which a plea for  a review  and revision of the earlier view is based ?  On  the earlier occasion, did some patent aspects of question remain unnoticed,  or was the attention of the Court not  drawn  to any  relevant and material statutory provision, or  was  any previous  decision  of this Court bearing on the  point  not noticed  ? Is the Court hearing such plea  fairly  unanimous that there is such an error in the earlier view?  What would be the impact of the error on the general administration  of law  or  on  public good ? Has  the  earlier  decision  been

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followed  on subquent occasions either by this Court  or  by the  High Courts ?  And, would the reversal of  the  earlier decision lead to public inconvenience, hardship or  mischief ?  These considerations become still more  significant  when the earlier decision happens to be a unanimous decision of a Bench of five learned Judges of this Court [922 B-F]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1017 of 1963. Appeal  from  the judgment and order dated  March  30th  and 31st, 1960 of the Bombay High Court in Income-tax  Reference No. 2 of 1949. N.   A. Palkhivala and I. N. Shroff, for the appellant. C.   K. Daphtary, Attorney-General, R. Ganapathy Iyer, R. H. Dhebar and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by Gajendragadkar,  C.J. When this appeal was argued  before  a Division  Bench  of this Court on October 23, 1964,  it  was urged on behalf of the appellant, the Keshav Mills Co. Ltd., that  in view of the present decisions of this Court in  The New Jehangir 910 Vakil  Mills Ltd. v. The Commissioner of Income-tax,  Bombay North, Kutch and.  Saurashtra(1), and The Petlad Turkey  Red Dye  Works Co. Ltd., Petlad v. The Commissioner  of  Income- tax,  Bombay, Ahmedabad (2), the appeal must be allowed  and the case sent back to the Bombay High Court for disposal  in accordance  with  the  principles laid down  in  the  latter decision.   At that stage, the learned Attorney-General  for the  respondent,  the  Commissioner  of  Income-tax,  Bombay North,  Ahmedabad,  urged  that  he  wanted  this  Court  to reconsider the said two decisions.  He fairly conceded  that if  the said two decisions were to be followed,  the  appeal would  have to be allowed and sent back as suggested by  the appellant.   The  learned Judges constituting  the  Division Bench  took the view that an opportunity should be given  to the  learned Attorney-General to press his  contention,  and so,  they directed that the appeal be placed before a  Bench of five Judges.  Thereafter, this appeal came on for hearing before the Constitution Bench on November 5, 1964.  On  this occasion  again, the same contentions were raised on  behalf of  the  appellant  and  the  respondent  respectively   Mr. Palkhilvala  for  the  appellant  urged  that  it  would  be inappropriate to reconsider the recent decisions on which he relied, and he argued that on the merits, the view taken  by this Court in the said two decisions was sound and  correct. On  the other hand, the learned  Attorney-General  contended that  he  wanted  this  Court to  reconsider  the  said  two decisions,  and  he  pointed  out that  the  matter  was  of importance,  and  so,  the appeal should be  referred  to  a larger  Bench in view of the fact that the decision  in  the case  of  the Petlad Co. (2) was a unanimous decision  of  a Bench consisting of five Judges of this Court.  It was under these circumstances that the Court directed that the  appeal should  be  placed before a Special Bench of  seven  Judges. ’Mat  is  how it has come on for a final decision  before  a Bench  of  seven Judges; and the only point which  has  been raised for the decision of the Special Bench is whether  the two decisions in question should be reviewed and revised. Let us begin by stating the relevant facts leading up to the main   point  of  controversy  between  the  parties.    The appellant is a company registered in the Baroda State as  it then  was.  The assessment year with which  the  proceedings

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giving  rise  to this appeal are concerned is  1942-43  (the accounting year being calendar year 1941).  During the  said year,  the  appellant was a ’non-resident’.  It  carried  on business of manufacturing and (1)  [1960] 1 S. C. R. 249.   (2) [1963] Supp.  1 S.  C.  R. 871. 911 selling  textile goods in the Baroda State.  The  operations in  relation  to  all sales of  goods  manufactured  by  the appellant’s Mills were completed at the appellant’s premises at Petlad on the footing of ex-Mill delivery in every case. It  appears that on March 22, 1947, the Income-tax  Officer, E.P.T. Circle, Ward B, Ahmedabad, passed an order under sec- tions  23  (3) and 34 of the Indian Income-tax Act,  1.  922 (No.   11  of 1922) (hereinafter called ’the Act)  and  held that sale proceeds in respect of the sales aggregating  each of the following three items were received by the  appellant in British India.  These items were : (i)  Sale-proceeds actually received in the accounting  Year through M/s Jagmohondas Ramanlal & Co.                Rs.       12,68,460 (ii) Sale-proceeds  through  British  Indian  Banks  through Drafts:                      Rs, 4,40,878 (iii)     Sale  proceeds collected by collecting cheques  on British Indian Banks and Hundis onBritish Indian Shorff  and Merchants                       Rs. 6,71,735 It  is  with  this  last item that  the  present  appeal  is concerned. Aggrieved  by  the  order  thus  passed  by  the  Income-tax Officer,  the  appellant  preferred  an  appeal  before  the Appellate  Assistant Commissioner of  Income-tax,  Ahmedabad Range.   The  Appellate Authority held that  the  Income-tax Officer  was in error in not excluding items (i)  and  (iii) respectively from computation of the taxable profits of  the appellant.    Thus,  the  appellant  succeeded  before   the appellate authority in respect of the item in dispute. This decision of the appellate authority led to two  cross-- appeals, one by the Income-tax Officer and the other by  the appellant before the Income-tax Appellate Tribunal-hereafter called the Tribunal.  The Tribunal dismissed the appellant’s appeal in respect of Rs. 4,40,878/- and allowed the  Income- tax  Officer’s appeal in part and held that the item of  Rs. 12,68,460/had   been  wrongly  excluded  by  the   Appellate Authority.   In  respect  of  item  (iii)  relating  to  Rs. 6,71,735/-,  the Tribunal held that in the circumstances  of the case the sale proceeds represented by the said item were not received in British India but in the State itself. This decision of the Tribunal led to two  cross-applications by the appellant and the Income-tax Officer for raising  the questions  of  law  before it in relation to  the  items  in respect of which 912 they  had  respectively  failed.   As  a  result  of   these proceedings, the Tribunal drew up the statement of the  case on  November 5, 1948, and raised’ the following question  to the Bombay High Court :- "Whether on the facts and in the circumstances of the  case, the sums of Rs. 12,68,460/-, Rs. 4,40,878/and Rs. 6,71,735/- , or any of them, which represents receipts by the  assessee company  of its sale-proceeds in British India, include  any portion of its income in British India ?" In  other words, all the three items in dispute between  the appeal]ant  and the Income-tax Officer formed  the  subject-

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matter  of  the question raised by the Tribunal  before  the Bombay High Court.  This reference was registered as Income- tax Reference No. 2 of 1949. By  its judgment and order delivered on the  14th/15th  Sep- tember,  1949,  in relation to items (i) and (ii)  the  High Court held that the two sums in question were not debts  due from British Indian Merchants but sale proceeds of the goods sold by the appellant to merchants in British India and that such sale proceeds were received by the appellant in British India.   In  other words, the answers rendered by  the  High Court  in  respect of the said two items  were  against  the appellant.   The  appellant  came to this  Court  in  appeal against  the  decision  of the High Court,  but  its  appeal failed  and  the view taken by the High Court  was  affirmed (vide  Keshav  Mills  Ltd. v.  Commissioner  of  Income-tax, Bombay)().   In  the  result, the  controversy  between  the appellant and the Income-tax Officer in respect of the  said items has been finally decided against the appellant. Reverting  then to item (iii) with which the present  appeal is  concerned, the High Court took the view that  before  it could  render an answer to the question in relation  to  the said item, it would like the Tribunal to furnish to the High Court  further facts.  Accordingly, the High Court  directed that the Tribunal should submit a supplementary statement of case  and  state  therein  as  to  whether  there  was   any arrangement  or  agreement  between  the  Assessee  and  the merchants  that  the  giving of cheques  or  hundis  by  the merchants  to the Assessee would result in an  unconditional discharge of the liability of the merchants.  The High Court also  issued  some other directions asking the  Tribunal  to clarify (1)  [19531 S. C. R. 950.                             913 some  of  its relevant findings which appeared to  the  High Court to be somewhat confused. As  a  result  of  this order, the case  went  back  to  the Tribunal which in turn remanded it to the Income-tax Officer for  getting  the requisite information.  On  receiving  the report of the Income-tax Officer, the Tribunal submitted its Supplementary Statement of Case to the High Court on  August 13, 1954. Whilst  these  proceedings  were thus pending  in  the  High Court,  the  decision of this Court in The  Commissioner  of Income-tax,  Bombay  South, Bombay v. Messrs.   Ogale  Glass Works Ltd., Ogale Wadi(1) was pronounced.  In that case, one of the points which arose for decision was whether the  Post Office  which  takes  the  cheque from  the  sender  to  the addressee  is the agent of the sender or the addressee;  and on this point, the Court held that as between the sender and the addressee, it is the request of the addressee that makes the  post-office, the agent of the addressee and after  such request, the addressee cannot be heard to say that the post- office was not his agent.  On the other hand, if there is no such  request by the addressee, express or implied, then  on delivery  of the letter or the cheque to the post office  by the sender, the post-office acts as the agent of the sender. This  decision  had  a significant  impact  on  the  further progress of the present dispute. After receiving the Supplementary Statement of Case from the Tribunal, the matter was argued before the High Court on the 15th  February,  1955.   On this occasion,  the  High  Court referred  the  matter back again to the  Tribunal  with  the direction  :  "that  the  Tribunal  will  determine  on  the evidence led by both parties whether the sum in question was paid  by  various  merchants by sending  drafts,  hundis  or

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cheques by post and that if the Tribunal found that in  some cases  the  amount was not sent by post, then  the  Tribunal should determine what amount was sent otherwise than by post and   the  Tribunal  should  then  submit  a   Supplementary Statement  of  the  Case".  It would be  noticed  that  this direction was given by the High Court obviously because  the High  Court wanted to deal with the question referred to  it in  the light of the decision of this Court in the  case  of Ogale  Glass  Works  Ltd." In fact, in  giving  this  second direction,  the High Court observed that when it had  called for  the first Supplementary Statement of the Case,  it  did not  have the benefit of the decision of this Court  in  the case  of Ogale Glass Works Ltd.,(1) and that after the  said decision was pronounced, the position with regard’ (1)  [1955] 1 S. C. R. 185. 914 to  receipt  of  the  cheque  by  the  appellant  had   been considerably simplified. Pursuant  to  the second order of remand made  by  the  High Court,  the  Tribunal  submitted  its  second  Supplementary Statement  of  the Case on the 26th  October,  1959.   After receipt of the second Supplementary Statement, the Reference again  came  up for hearing before the  high  Court.   After hearing the parties, the High Court has rendered its  answer against  the  appellant on the question in relation  to  the item  in  dispute.  It is against this order passed  by  the High  Court  on  the 30th and 31St  March,  1960,  that  the appellant has come to this Court with a certificate  granted by  the  High Court; and on its behalf, Mr.  Palkhivala  has urged that in view of the decisions of this Court in the New Jehangir  Mills(1) case and Petlad Co.(2) case,  the  appeal must  be allowed and the case remitted to the High Court  to be dealt with in accordance with the principles laid down by this Court in the latter case. It  is common ground that as a result of the two  orders  of remand  passed  by the High Court in the  present  Reference proceedings,  some  material evidence which was not  on  the record when the question was framed by the Tribunal and sent to  the  High  Court under s. 66(1) of  the  Act,  has  been collected and made a part of the Supplementary Statement  of the  Case; and basing himself on this fact,  Mr.  Palkhivala contends that the ’High Court had no jurisdiction to  direct the  Tribunal to collect additional material and form  it  a part  of the Supplementary Statement under s. 66(4)  of  the Act.   It is in support of this contention that reliance  is placed on the two decisions in question.  Before  addressing ourselves  to  the problem as to whether the view  taken  by this   Court  in  the  said  two  decisions  needs   to   be reconsidered  and  revised, it is necessary that  we  should refer  to the said two decisions as well as other  decisions on  which  both  the parties have relied before  us  in  the course of the arguments. The first decision on which Mr. Palkhivala relies is the New Jehangir  Mills(1) case.  In that case, the  question  which was  referred by the Tribunal to the High Court was  whether the receipt of the cheques in Bhavnagar amounted to  receipt of sale proceeds in Bhavnagar.  Before rendering its  answer to  this question, the High Court had directed the  Tribunal to  furnish  a Supplementary Statement of the  Case  on  the following points               "On  the finding of the Tribunal that all  the               cheques   were  received  in  Bhavnagar,   the               Tribunal should find               (1) [1960] S. C. R. 249.               (2) [1963] SUPP.  S. C. R. 871.

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             915               what portion of these cheques were received by               post,  whether  there was any request  by  the               assessee, express or implied, that the amounts               which are the subject-matter of these  cheques               should be remitted to Bhavnagar by post". It would be noticed that as a result of this direction,  the question  which  would really have to be considered  by  the High  Court would be whether the posting of the  cheques  in British  India at the. request, express or implied,  of  the appellant, amounted to. receipt of sale-proceeds in  British India.  It was urged by the appellant in that case that as a result of the direction issued by the High Court calling for a  supplementary,.statement of the case, the nature  of  the question  formulated by the Tribunal had been  altered,  and that  was beyond the competence of the High Court  under  s. 66(4).  In substance, this plea was upheld by this Court and it was held that in calling for the supplementary  statement of  the  case, the High Court had misconceived  its  powers. under  s. 66(4) of the Act.  According to this decision,  S. 66(4) must be read with S. 66(1) and S. 66(2), and so  read, it did not empower the High Court to raise a new question of law  which  did  not arise out of the  Tribunal’s  order  or direct  the, Tribunal to investigate new and  further  facts necessary  to determine the new question which had not  been referred  to  it under S. 66(1) or s. 66(2) of the  Act  and direct  the Tribunal to submit, supplementary  statement  of case.   The  additions and alterations in the  statement  of case  which  can be directed under S. 66(4)  could,  in  the opinion  of this Court relate only to such facts as  already formed  part  of the record but were not  included  by  the. Tribunal  in  the  statement of the  case.   Mr.  Palkhivala contends that in the light of the decision, we ought to hold that  in  so far as the two orders of remand passed  by  the High Court in the present Reference proceedings have led  to the  collection  of’ additional material  and  evidence  and their inclusion in the supplementary statements of the case, the High Court has exceeded its jurisdiction under s. 66(4). The  other case on which Mr. Palkhivala strongly  relies  is the  decision of this Court in the Petlad Co. Ltd  (1).   In that  case,  one  of the points decided by  this  Court  had reference  to the extent of the powers and authority of  the High Court under s. 66(4).  It was held that though the High Court  had  power to direct a supplemental statement  to  be made,  it  was beyond its competence  to  direct  additional evidence to be taken.  In other (1)  [1963] Supp. 1 S. C. R. 871. 916 words,  this  Court took the view that when the  High  Court makes  an  order of remand under S. 66(4)  and  directs  the Tribunal to furnish a supplemental statement of the case, it can  require  the Tribunal to include in  such  supplemental statement material and evidence which may. already be on the record, but which had not been included in the statement  of the case initially made under Is. 66(1).  The result of this decision is that S. 66(4) does not confer on the High  Court power  to require the Tribunal to take  additional  evidence before  it renders its answers on the  questions  formulated under  S.  66(1) or s. 66(2).  In accordance with  the  view thus  taken by this Court, the direction issued by the  High Court  to submit a supplemental statement of the case  after taking  additional evidence was reversed, and following  the precedent  in the New Jehangir Mills(1) case, an  order  was passed  that  the appeals should be allowed and  the  matter remitted  to  the  High Court to give its  decision  on  the

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question of law referred to it as required under s. 66(5) of the Act. Before the decision of this Court in the Petlad Co. Ltd.  (2 was pronounced, a similar point had been raised in the  case of M/s.  Zoraster and Co. v. The Commissioner of Income-tax, Delhi,  Ajmer,  Rajasthan  and  Madhya  Bharat  (now  Madhya Pradesh(2).   In this latter case, the question referred  to the High Court for its decision was whether on the facts and circumstances of the case, the profits and gains in  respect of  the sales made to the Government of India were  received by  the assessee in the taxable territories ? While  dealing with  this question, the High Court thought it necessary  to remand the case to the Tribunal for a supplemental statement of  the case calling for a finding on the  question  whether the  cheques  were sent to the assessee firm by post  or  by hand  and  what directions, if any, had  the  assessee  firm given  to  the department in the matter ? The  validity  and correctness   of  this  direction  was  challenged  by   the appellant before this Court in view of the decision of  this Court  in the care of New Jehangir Mills(3).  While  dealing with this objection raised by the appellant, this Court held that  the  question  as it was framed, was  wide  enough  to include  an  enquiry as to whether there  was  any  request, express or implied, that the amount of the bills be paid  by cheques  so as to bring the matter within the dicta of  this Court  in the Ogale Glass Works(4) case or in  Shri  Jagdish Mills Ltd. v. The Commissioner of Income-tax, Bombay  North, Kutch  and  Saurashtra, Ahmedabad(5) and since  it  did  not appear (1) [1960] 1 S. C. R. 249. (2) [1963] Supp.  1 S. C.  R.  871. (3) [1961] 1 S. C. R. 210. (4) [1955] 1 S. C.  IL 185. (5)  [1960] 1 S. C. R. 236. 917 from  the order of remand passed by the High Court that  the High  Court  intended that the Tribunal should  admit  fresh evidence  before submitting its supplemental statement,  the impugned  direction could not be said to be  invalid.   This decision  shows  that  when a question  is  framed  for  the decision of the High Court in wide terms, and the High Court finds that before rendering its answer on the said  question some new aspects have to be considered and it feels that for dealing  with  the  said  new  aspects  of  the  matter,   a supplemental statement of the case should be called for, the High  Court  is  authorised  to  call  such  a  supplemental statement,  provided,  of course, the High  Court  does  not require  the  Tribunal  to collect  additional  material  or evidence before submitting its supplemental statement. The  same view has been expressed by this Court in the  case of Commissioner of Income-tax, Madras v. M. Ganapathi  Muda- liar(1).   According  to  this  decision,  a   supplementary statement of case may contain such alterations or  additions as  the  High  Court  may direct,  but  the  statement  must necessarily  be  based  on facts which are  already  on  the record.   While exercising its jurisdiction under S.  66(4), the High Court has no power to ask for a fresh statement  of case  with a direction that the Tribunal should go into  the matter again and record further evidence. There  is one more decision to which reference may  inciden- tally be made before we part with the series of decisions on which Mr. Palkhivala relies.  In the Commissioner of Income- tax,  Bombay v. The Scindia Steam Navigation Co.  Ltd.,  (2) this Court had occasion to consider the scope and denotation of  the expression "any question of law arising out of  such

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order’  occurring  in  S. 66(1) of the  Act.   The  majority decision  has summed up the result of the discussion  as  to the  scope  and effect of the provisions of s. 66  in  these words : (1)  When  a question is raised before the Tribunal  and  is dealt with by it is clearly one arising out of its order. (2)  When  a question of law is raised before  the  Tribunal but  the  Tribunal fails to deal with it must be  deemed  to have  been dealt with by it, and is, therefore, one  arising out of its order. (3)  When  a question is not raised before the Tribunal  but the  Tribunal  deals with it, that will also be  a  question arising out of its order. (4)  When  a  question of law is neither raised  before  the Tribunal nor considered by it will not be a question arising (1) [1964] 53 1 I.T.R. 623. (2) [1962] 1 S.  C. R. 788, 918 out  of its order notwithstanding that it may arise  on  the findings given by it. In  substance,  these propositions mean that it  is  only  a question  that  has  been raised before or  decided  by  the Tribunal that could be held to arise out of its order. Let  us  now  refer to the decisions on  which  the  learned Attorney-General  has  relied in support of  his  contention that the High Court has power under s. 66(4) to call for new additional   evidence  if  it  takes  the  view  that   such additional  evidence is necessary to enable it to  determine the  question raised for its decision  satisfactorily.   The learned Attorney-General has fairly conceded that he has not been able to find any decision where this question has  been answered in favour of the view for which he contends   after construing  the relevant provisions of S. 66(4) of the  Act. He,  however, urges that there is high authority in  support of the practice for which he contends inasmuch as the  Privy Council appears to have assumed that the High Court can,  in exercise  of its powers under S. 66(4), call for  additional evidence.  The first decision of the Privy Council on  which he  relies is in the case of (Sir Sunder Singh  Majithia  v. The  Commissioner  of Income-tax, C.P. &  U.P.(1).  In  that case,  two of the questions which arose were :  whether  the steps taken by the assessee to vest in his wife and sons  an interest  in the immovable assets of the business  were  not legally effective, e.g., for want of a registered instrument of  transfer;  and  if the factory, land  and  buildings  in question  were joint family property, whether it  was  shown that  a  partition at the hands of the father  of  the  said properties   could  not  be  effected  without   a   written instrument ? The question of law formulated for the decision of  the  High Court was : "In all the circumstances  of  the case,  having  regard  to the  personal  law  governing  the assessee  and the requirements of the Transfer  of  Property Act  (IV  of 1882) and the Stamp Act (11 of 1899),  has  the deed  of partnership dated February 12, 1933,  brought  into existence a genuine firm entitled to registration under  the provisions  of  s. 26-A of the Act?"  While  answering  this question,  one  of the points which had to  be  decided  was whether the immovable properties were the  self-acquisitions of the father or not.  The Privy Council took the view  that before  a  satisfactory  answer could  be  rendered  on  the question framed, several facts had to be ascertained, and in its  judgment the Privy Council has indicated the nature  of these facts.  "It is necessary to know", says the  judgment, "as regards (a) the business, machinery, plant (1)  [1942] 10 I.T.R. 457.

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919 and  other  movables;  (b) the factory  buildings  and  land whether they were before 1931 the self-acquired property  of the  father  or  his  ancestral  property  or  joint  family property  or  whether  they fall into some  other  and  what category according to the customary law".  The judgment also points  out that the rights of the members of the family  in respect  of the said property would have to  be  ascertained and the conduct of the parties considered.  Then, in  regard to the agreement in question, the Privy Council pointed  out that  it  would be necessary to enquire what  agreement,  if any,  was made prior to February 12, 1933, and when as to  a partnership being constituted to carry on the sugar  factory and as to the assets which it was to have as a firm.   "None of  these  essential facts", says the judgment,  "have  been found  and stated by the Commissioner, with the result  that the  question  referred cannot be answered  until  the  High Court  has  exercised its powers under  sub-section  (4)  of section 66 of the Act".  Having made these observations, the Privy Council left it to the discretion of the High Court to specify  the particular additions and alterations which  the Commissioner should be directed to make.  In the result, the advice  tendered by the Privy Council was "that the case  be remanded  to the High Court for disposal after  taking  such action under sub-section (4) of s. 66 of the Act as the High Court  may  think fit in the light of this  judgment".   The argument  is that the facts which the Privy Council  thought it  necessary  to ascertain before answering  the  question, indicate that they could not have been on the record at  the time  when  the  question  was  originally  framed  by   the Commissioner, and so, the suggestion is that inasmuch as the Privy Council indicated that the High Court should call  for a  supplemental  statement  in regard to  facts  which  were apparently  not already on the record, this decision  should be taken to support the contention that s. 66(4)  authorised the High Court to call for new additional material before it renders  its  answers to the questions formulated  under  s. 66(1) or s. 66(2). A similar argument is based on another decision of the Privy Council  in  Trustees  of  the  Tribune  Press,  Lahore   v. Commissioner  of  Income-tax, Punjab,  Lahore(1).   In  that case,  the questions which were referred to the  High  Court were  :  "(1) whether the income of the  Tribune  Trust  was liable to be assessed in the hands of the Trustees under the provisions  of  the  Income-tax Act ?; and (2)  if  it  was, whether it was not exempt under s. 4(3) (1) of the Act?"  In the  High  Court, there was a sharp  difference  of  opinion between  the Judges who heard the reference; but  ultimately the 4 Sup./65-13 920 answers  went against the Tribune, and so, the  dispute  was taken  to the Privy Council by the Trustees of  the  Tribune Trust.   At the first hearing of the said appeal before  the Privy  Council,  it  was  considered  by  the  Board  to  be desirable that the powers conferred by sub-s. 4 of s. 66  of the  Act should be employed to obtain  further  information. Accordingly, by an Order in Council, dated July 29, 1937, it was  directed in accordance with the advice tendered by  the Board  that the case ought to be remitted to the High  Court of Judicature at Lahore with a direction that the said  High Court shall refer the case back to the Commissioner under s. 66(4), first for the addition of such facts during the life- time of the testator Sardar Dayal Singh as may bear upon the proper  interpretation  of the expression  ’keeping  up  the

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liberal  policy of the said newspaper in clause XXI  of  the will of the said testator dated the 15th Day of June,  1895, and  secondly,  for  the  addition of such  facts  as  to  a compromise dated the 1st day of December, 1906, as may  show whether  the  said  compromise is  binding  on  all  parties interested in the estate of the said testator.   Thereafter, a supplementary statement made by the Commissioner was filed and  it appears that before he made the said statement,  the Commissioner  "carefully  assembled  considerable   material explanatory  of the direction given by the testator  in  the phrase ’keeping up the liberal policy of the said newspaper, and  showing  as  their Lordships think,  very  fairly,  the nature  and  purpose of the trust".  After  considering  the said   material,  the  Privy  Council  allowed  the   appeal preferred by the Trustees, because in its opinion the second question framed for the decision of the High Court had to be answered  in favour of the assessee.  It is urged that  this decision  also  shows  that the  Privy  Council  called  for additional material and evidence by requiring the High Court to exercise its powers in that behalf under s. 66(4) of  the Act. The  learned  Attorney-General also stated that  there  were some  other  decisions  of the High Courts  in  India  where similar additional evidence had been called for by the  High Courts under s. 66(4), and by way of illustration, he  cited before  us the decision of the Bombay High Court in  Messrs. Govindram   Bros.   Ltd.  v.  Commissioner  of   Income-tax, Central,  Bombay(1).  It is, however, clear that in none  of the  decisions on which the learned Attorney-General  relies has  the  question about the construction of S.  66(4)  been argued,  considered and decided.  That, broadly  stated,  is the position disclosed by the judicial decisions bearing  on the point with which we are concerned in the present appeal. (1)  [1946]14 I.T.R. 764. 921 In  dealing  with  the question as to  whether  the  earlier decisions  of this Court in the New Jehangir Mills(1)  case, and  the Petlad Co. Ltd.(1) case should be reconsidered  and revised by us, we ought to be clear as to the approach which should  be  adopted in such cases.  Mr. Palkhivala  has  not disputed  the  fact that in a proper case,  this  Court  has inherent  jurisdiction to reconsider and revise its  earlier decisions, and so, the abstract question as to whether  such a  power vests in this Court or not need not detain us.   In exercising  this inherent power, however, this  Court  would naturally like to impose certain reasonable limitations  and would   be   reluctant   to   entertain   pleas   for    the reconsideration  and  revision  of  its  earlier  decisions, unless  it  is  satisfied  that  there  are  compelling  and substantial  reasons  to  do so.   It  is  general  judicial experience  that  in matters of law involving  questions  of construing statutory or constitutional provisions, two views are often reasonably possible and when judicial approach has to make a choice between the two reasonably possible  views, the  process of decision-making is often very difficult  and delicate.   When this Court hears appeals against  decisions of the High Courts and is required to consider the propriety or  correctness of the view taken by the High Courts on  any point  of law, it would be open to this Court to  hold  that though  the  view  taken by the  High  Court  is  reasonably possible,  the  alternative view which  is  also  reasonably possible is better and should be preferred.  In such a case, the choice is between the view taken by the High Court whose judgment  is  under appeal, and the alternative  view  which appears to this Court to be more reasonable; and in  accept-

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ing  its own view in preference to that of the  High  Court, this  Court  would  be discharging its duty as  a  Court  of Appeal.  But different considerations must inevitably  arise where  a  previous  decision  of  this  Court  has  taken  a particular  view  as  to the  construction  of  a  statutory provision as, for instance, s. 66(4) of the Act.  When it is urged  that the view already taken by this Court  should  be reviewed and revised, it may not necessarily be an  adequate reason for such review and revision to hold that though  the earlier view is a reasonably possible view, the  alternative view  which  is pressed on the subsequent occasion  is  more reasonable.  In reviewing and revising its earlier decision, this Court should ask itself whether in the interests of the public  good or for any other valid and compulsive  reasons, it is necessary that the earlier decision should be revised. When this Court decides questions of law, its decisions are, under  Art. 141, binding on all courts within the  territory of  India,  and so, it must be the  constant  endeavour  and concern of (1) [1960] 1 S.C.R. 249. (2) [1963] Supp.  1 S.C.R. 871. A Sup./65-14 922 this Court to introduce and maintain an element of certainty and continuity in the interpretation of law in the  country. Frequent  exercise by this Court of its power to review  its earlier decisions on the ground that the view pressed before it  later  appears to the Court to be more  reasonable,  may incidentally  tend  to  make  law  uncertain  and  introduce confusion  which must be consistently avoided.  That is  not to  say  that  if on a subsequent  occasion,  the  Court  is satisfied  that its earlier decision was clearly  erroneous, it  should  hesitate  to correct the  error;  but  before  a previous decision is pronounced to be plainly erroneous, the Court  must  be satisfied with a fair  amount  of  unanimity amongst  its  members that a revision of the  said  view  is fully  justified.  It is not possible or desirable,  and  in any case it would be inexpedient to lay down any  principles which  should  govern the approach of the Court  in  dealing with  the  question of reviewing and  revising  its  earlier decisions.   It  would always depend upon  several  relevant considerations :What is the nature of the infirmity or error on  which  a plea for a review and revision of  the  earlier view  is  based ? On the earlier occasion, did  some  patent aspects  of  the  question  remain  unnoticed,  or  was  the attention  of  the  Court  not drawn  to  any  relevant  and material  statutory provision, or was any previous  decision of  this  Court bearing on the point not noticed  ?  Is  the Court hearing such plea fairly unanimous that there is  such an  error in the earlier view ? What would be the impact  of the error on the general administration of law or on  public good ? Has the earlier decision been followed on  subsequent occasions either by this Court or by the High Courts ?  And, would  the reversal of the earlier decision lead  to  public inconvenience,  hardship  or  mischief  ?  These  and  other relevant  considerations  must be carefully  borne  in  mind whenever   this  Court  is  called  upon  to  exercise   its jurisdiction  to  review and revise its  earlier  decisions. These considerations become still more significant when  the earlier  decision  happens to be a unanimous decision  of  a Bench of five learned Judges of this Court. It  is true that in the case of the Bengal Immunity  Company Ltd.  v.  The  State of Bihar & Ors. (1)  this  Court  by  a majority of 4 : 3 reversed its earlier majority decision  (4 : 1) in the State of Bombay and Another v. The United Motors

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(India)  Ltd. and Ors. (2); but that course was  adopted  by the  majority  of  Judges in that case,  because  they  were persuaded   to  take  the  view  that  there  were   several circumstances which made it necessary to adopt that course. (1)  [1955] 2 S.C.R. 603. (2) [1953] S.C.R. 1069. 923 On  the  other hand, dealing with a similar problem  in  the case of Sajjan Singh etc. v. The State of Rajasthan etc.(1), this  Court unanimously rejected the request made on  behalf of the petitioners that its earlier decision in Sri  Sankari Prasad  Singh Deo v. The Union of India and State  of  Bihar (2)  should  be  reviewed  and  revised.   Hidayatullah  and Mudholkar,  JJ. who were somewhat impressed by some  of  the pleas  made  in support of the contention that  the  earlier decision  should  be revised, in substance agreed  with  the ultimate  decision of the Court that no case had  been  made out  for a review or revision of the said earlier  decision. The principle of stare decision, no doubt, cannot be pressed into  service in cases where the jurisdiction of this  Court to  reconsider and revise its earlier decisions is  invoked; but  nevertheless,  the  normal  principle  that   judgments pronounced by this Court would be final, cannot be  ignored, and  unless considerations of a substantial  and  compelling character make it necessary to do so, this Court should  and would  be  reluctant  to  review  and  revise  its   earlier decisions.   That, broadly stated, is the approach which  we propose  to  adopt  in dealing with the point  made  by  the learned Attorney-General that the earlier decisions of  this Court in the New Jehangir Mills(3) case, and the Petlad  Co. Ltd. (4 ) case should be reconsidered and revised. Let us then consider the question of construing S. 66(4)  of the  Act.   Before we do so, it is necessary  to  read  sub- section (1), (2) and (4) of s. 66.  Section 66(1) reads thus :-               "Within  sixty days of the date upon which  he               is  served with notice of an order under  sub-               section (4) of section 33, the assessee or the               Commissioner   may,  by  application  in   the               prescribed form, accompanied where application               is  made  by  the assessee by  a  fee  of  one               hundred rupees, require the appellate Tribunal               to refer to the High Court any question of law               arising  out of such order, and the  Appellate               Tribunal  shall  within  ninety  days  of  the               receipt  of such application draw up a  state-               ment  of  the case and refer it  to  the  High               Court".               There  is a proviso to this sub-section  which               is  not  relevant for  our  purpose.   Section               66(2) reads thus :               "If  on any application being made under  sub-               section (1), the Appellate Tribunal refuses to               state the               (1)   [1965] 1 S.C.R. 933.               (2)   [1952] S.C.R. 89.               (3)   [1960] 1 S.C.R. 249.               (4)   [1963] Supp.  1 S.C.R. 871.               924               case  on  the ground that no question  of  law               arises,  the assessee or the Commissioner,  as               the  case may be, may, within six months  from               the date on which he is served with notice  of               the refusal, apply to the High Court, and  the               High Court may, if it is not satisfied of  the

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             correctness  of the decision of the  Appellate               Tribunal,  require the Appellate  Tribunal  to               state the case and to refer it, and on receipt               of any such requisition the Appellate Tribunal               shall   state   the   case   and   refer    it               accordingly".               That  takes us to sub-section (4) which  reads               thus               "if  the High Court is not satisfied that  the               statements  in  a  case  referred  under  this               section   are  sufficient  to  enable  it   to               determine  the  question raised  thereby,  the               Court may refer the case back to the Appellate               Tribunal  to  make such additions  thereto  or               alterations therein as the Court may direct in               that behalf". Section  66(5) provides that the High Court upon hearing  of any  such  case  shall decide the questions  of  law  raised thereby  and shall deliver its judgment  thereon  containing the grounds on which such decision is founded and shall send a  copy  of such judgment to the  Appellate  Tribunal  which shall  pass such orders as are necessary to dispose  of  the case conformably to such judgment. It  is clear that when the Tribunal draws up a statement  of the  case  and refers a question of law to  the  High  Court under  s.  66(1), the said question must arise  out  of  its order,  and the statement of the case would  necessarily  be limited  to  the statement of facts already brought  on  the record  either before the Income-tax Officer or  before  the Appellate  Assistant Commissioner, or before  the  Tribunal. There  is no doubt and indeed no dispute before us that  the question of law must arise from the Tribunal’s order and the statement of the case must be confined to the facts  already brought on the record.  The same would be the position where the  High Court requires the Tribunal to state the case  and refer  to  it under s. 66(2).  The position,  therefore,  is that  when  the  High  Court  is  exercising  its   advisory jurisdiction  under S. 66(4), it is dealing with a  question of  law  arising from the order of the Tribunal and  has  to answer  the said question in the light of the  statement  of the case submitted to it by the Tribunal. in normal  course, the  statement of the case would refer to facts selected  by the Tribunal from out of the material already on the  record and  it  is in the light of the said statement of  the  case that 925 the  question  has to be answered by the High  Court.   Thus far, there is no controversy or dispute. Section  66(4), however, authorises the High Court to  refer the case back to the Tribunal to make such additions to  the statement  of the case or alterations therein as  the  Court may  direct in that behalf.  This power can be exercised  by the High Court if it is satisfied that the statement of  the case  is  not  sufficient  to enable  it  to  determine  the question  raised  by it.  If the High Court  feels  that  in order  to answer satisfactorily the question referred to  it is  necessary  to have additional material included  in  the statement   of  the  case,  the  High  Court  can  make   an appropriate direction in that behalf.  If the High Court  is satisfied  that  some  alterations should  be  made  in  the statement of the case to enable it to determine the question satisfactorily, it can make an appropriate direction in that behalf.   The  question is whether  in  issuing  appropriate directions under $. 66(4), the High Court can ask the Tribu- nal  to travel outside the record and call for  and  collect

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material which is not already produced on the record.  If s. 66(4) is read along with s. 66(1) and s. 66(2), it may  tend to  show  that  the power of the High Court  is  limited  to requiring  the Tribunal to add to or alter the statement  of the  case in the light of the material and evidence  already on the record.  If the question that can be raised under  s. 66(1)  and s. 66(2) can arise only out of the order  of  the Tribunal  and  if the statement of the case required  to  be drawn up by the Tribunal under the said two provisions would inevitably be confined to the facts and material already  on the record, it seems unlikely that s. 66(4) would  authorise the High Court to direct the Tribunal to collect  additional material or evidence not on the record. The scheme of the Act appears to be that before the  Income- tax  Officer  all  the relevant  and  material  evidence  is adduced.    When  the  matter  goes  before  the   Appellate Assistant  Commissioner, he is authorised under s. 31(2)  to make such further enquiry as he thinks fit, or cause further enquiry  to  be  made by the Income-tax  Officer  before  he disposes  of  the appeal filed before him.  Section  31  (2) means that at the appellate stage additional evidence may be taken  and further enquiry may be made in the discretion  of the Appellate Assistant Commissioner.  When the matter  goes before  the  Appellate Tribunal under s.  33,  the  question about  the admission of additional evidence is  governed  by Rule  29  of the Income (Appellate  Tribunal)  Rules,  1963. This Rule provides that the parties to the appeal shall  not be  entitled to produce additional evidence either  oral  or documentary before the Tribunal, but if 4 Sup./65-15 926 the  Tribunal requires any documents to be produced  or  any witness  to  be  examined or any affidavit to  be  filed  to enable it to pass orders or for any other substantial cause, or  if the Income-tax Officer has decided the  case  without giving  sufficient  opportunity to the  assessee  to  adduce evidence either on points specified by him or not  specified by him, the Tribunal may allow such document to be  produced or  witness to be examined or affidavit to be filed  or  may allow such evidence to be adduced. After  the Tribunal has passed orders on the  appeal  before it,  the  stage  is reached to take the  matter  by  way  of reference  proceedings  before the High Court under  s.  66. This scheme indicates that evidence has to be led  primarily before  the Income-tax Officer, though  additional  evidence may  be led before the Appellate Assistant  Commissioner  or even  before the Tribunal, subject to the provisions  of  s. 31(2)  of the Act and Rule 29 respectively, and  that  means that  when  the Tribunal has disposed of the matter  and  is preparing  a statement of the case either under s. 66(1)  or under  S.  66(2),  there  is no scope  for  any  further  or additional  evidence.   When  the matter goes  to  the  High Court,  it  has to be dealt with on the evidence  which  has already been brought on the record.  If the statement of the case does not refer to the relevant and material facts which are  already  on the record, the High Court may call  for  a supplementary statement under s. 66(4), but the power of the High  Court under s. 66(4) can be exercised only in  respect of  material and evidence which has already been brought  on the record. There is another consideration which is relevant in  dealing with  the  question  about  the  scope  and  effect  of  the provisions contained in S. 66(4).  Proceedings taken for the recovery  of  tax  under  the  provisions  of  the  Act  are naturally intended to be over without unnecessary delay, and

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so,  it is the duty of the parties, both the department  and the  assessee, to lead all their evidence at the stage  when the  matter is in charge of the Income-tax Officer.   Oppor- tunity  is,  however, given for additional  evidence  by  s. 31(2) and Rule 29; but if further evidence is allowed to  be taken under the directions of the High Court under s. 66(4), it   is  likely  that  tax  proceedings  may  be   prolonged interminably, and that could not be the object of the Act as it is evidenced by the relevant provisions to which we  have already referred.  These mainly are the grounds on which the earlier decisions of this Court in the New 927 Jehangir  Mills(1)  case and the Petlad Co.  Ltd.  (2)  case substantially rest. On  the other hand, it must be conceded that the words  used in  s.  66(4)  are wide enough and they may,  on  a  liberal construction,  include  the  power to  call  for  additional evidence  by  directing the Tribunal to  file  supplementary statement  of the case.  It is true that S. 66(4)  in  terms does  not  confer  such a power and it may  be  that  having regard  to  the scheme of s. 66(1) and (2), one  would  have expected specific and express terms conferring such power on the  High Court in s. 66(4) if the Legislature had  intended that  the  High  Court  would  be  competent  to  call   for additional evidence; but there are no terms of limitation in s. 66(4), and it would be reasonably possible to construe s. 66(4)  as  enabling the High Court to  call  for  additional evidence  if  it  is  satisfied that  the  material  in  the statement   of  the  case  is  not  sufficient   to   answer satisfactorily  the question raised by the statement of  the case.  When the High Court is dealing with the statement  of the  case  under  s. 66(4), it is its  duty  to  answer  the question submitted to it.  As has been held by this Court in Rajkumar   Mills   Ltd.  v.  Commissioner   of   Income-tax, Bombay(1), where the question involved is one of law and the High  Court finds it difficult to answer the question  owing to  the unsatisfactory nature of the statement of  the  case submitted  by the Tribunal, the proper procedure is to  call for  a  further statement of the case and  then  decide  the question  itself.   The  High Court would  be  adjuring  its advisory  function  if it merely gives some  directions  and orders  the Tribunal to dispose of the matter  according  to law  and in the light of the directions given by it  without referring the matter again to the High Court; and so, if the High  Court  finds that in order to deal with  the  question referred  to it satisfactorily it is necessary to  ascertain some  relevant and material facts, it should be open to  the High  Court to direct the Tribunal to make  a  supplementary statement containing the said material and facts.  There  is no provision in s. 66(4) which prevents the exercise of such a power. In  some  cases, the question of law referred  to  the  High Court  may have to be considered in several aspects some  of which may not have been appreciated by the Tribunal.   There is  no doubt that if a question of law is framed in  general terms  and  in dealing with it several aspects  fall  to  be considered,  they  have to be considered by the  High  Court even  though the Tribunal may not have considered them.   In such a case, if in dealing with some aspects (1) [1960] 1 S.C.R. 249. (2) [1963] Supp.  1 S.C.R. 871. (3)(1955] 28 I.T.R. 184 928 of  the matter it becomes necessary to ascertain  additional facts, it would be unsatisfactory to require the High  Court

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to answer the question without such additional facts on  the ground  that  they have not been introduced  on  the  record already.  Refusal to recognise the jurisdiction of the  High Court  to  call  for such additional evidence  may  lead  to hardship  in  many  cases,  and since  there  are  no  words expressly  limiting  the powers of the High Court  under  S. 68(4), there is no reason why the said powers should receive a  narrow  and limited construction.  That is the  view  for which the learned Attorney-General contends. It  must  be conceded that the view for  which  the  learned Attorney-General  contends  is a reasonably  possible  view, though  we must hasten to add that the view which  has  been taken  by  this  Court  in its  earlier  decisions  is  also reasonably  possible.   The  said  earlier  view  has   been followed  by  this  Court  on  several  occasions  and   has regulated the procedure in reference proceedings in the High Courts in this country ever since the decision of this Court in the New Jehangir Mills(1) was pronounced on May 12, 1959. Besides, it is somewhat remarkable that no reported decision has  been  cited  before us where  the  question  about  the construction  of  S.  66(4) was considered  and  decided  in favour   of  the  Attorney-General’s   contention.    Having carefully weighed the pros and cons of the controversy which have been pressed, before us on the present occasion, we are not  satisfied that a case has been made out to  review  and revise  our  decisions  in  the case  of  the  New  Jehangir Mills(2)  and the case of the Petlad Co. Ltd. (2) . That  is why  we think that the contention raised by  Mr.  Palkhivala must be upheld.  In the result, the order passed by the High Court  is set aside and the matter is sent back to the  High Court with a direction that the High Court should deal  with it  in  the light of the two relevant decisions in  the  New Jehangir Mills(1) and the Petlad Co. Ltd. (2 ). Before  we part with this appeal, however, we would like  to add that in the course of the debate in the present  appeal, Rule  39  of the Income-tax (Appellate Tribunal)  Rules  was incidentally  referred  to, though neither party  based  any argument on it.  That being so, the question as to the  true scope  and  effect of the provisions contained in  the  said Rule  does  not  fall  to  be  considered  in  the   present proceedings and we express no opinion on it.  There would be no order as to costs throughout. Appeal allowed and remanded. (1) [1960] 1 S.C.R. 249, (2) [1963] Supp, 1 S.C.R. 871, 929