12 May 1959
Supreme Court
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THE NEW JEHANGIR VAKIL MILLS LTD. Vs THE COMMISSIONER OF INCOME-TAX, BOMBAYNORTH, KUTCH AND SAU

Case number: Appeal (civil) 50 of 1957


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PETITIONER: THE NEW JEHANGIR VAKIL MILLS LTD.

       Vs.

RESPONDENT: THE COMMISSIONER OF INCOME-TAX, BOMBAYNORTH, KUTCH AND SAURA

DATE OF JUDGMENT: 12/05/1959

BENCH: BHAGWATI, NATWARLAL H. BENCH: BHAGWATI, NATWARLAL H. DAS, SUDHI RANJAN (CJ) HIDAYATULLAH, M.

CITATION:  1959 AIR 1177            1960 SCR  (1) 249

ACT:        Income-tax-Reference-Power  of  High  Court-If  can   direct        investigation on a new question and call for  "supplementary        statement of case--Indian Income-tax Act, 1922 (XI Of 1922),        s. 66(4).

HEADNOTE:        This appeal by special leave was directed against the  order        of  the High Court asking the Income-tax Appellate  Tribunal        under   s.  66(4)  Of  the  Income-tax  Act  to   submit   a        supplementary’ statement of case on points, which were never        raised  by  the  parties  nor  decided  by  the   Income-tax        Authorities  or the Tribunal.  The only  question  canvassed        before them was whether certain cheques, which were received        by  the assessee at Bhavnagar having been cashed in  British        India,  the monies in respect of them could be said to  have        been received in British India.  The Tribunal held that  the        monies  related back to the receipt of the cleques and  were        as such received at Bhavnagar.  The question was whether the        receipt  of the cheques at Bhavnagar amounted to receipt  of        the  sale proceeds at Bhavnagar.’ The High Court  held  that        the mere receipt of the cheques by post at Bhavnagar was not        conclusive in absence of a further finding as to whether the        cheques  were sent by post without any request,  express  or        implied,  having been made by the assessee and  observed  as        follows-        "  But we cannot shut out the necessary inquiry  which  even        from our own point of view is necessary to be made in  order        that we should satisfactorily answer the question raised  in        the  Reference.   It must not be forgotten that  under  sec.        66(4) of the Income-tax Act we have a right independently of        the  conduct of the parties to direct the Tribunal to  state        further facts so that we may properly exercise our  advisory        jurisdiction."        Held, that the High Court had misconceived its powers under        s.   66(4) of the Act and its decision must be set aside.        Section  66(4) of the Indian Income-tax Act, which  must  be        read  with ss. 66(1) and 66(2) Of the Act, 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

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      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.   Such  additions   and        alterations in the statement of case as s. 66(4) of the  Act        empowered the High Court to direct, could        250        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.        Craddock  (H.   M. Inspector of Taxes) v. Zevo  Finance  Co.        Ltd.,  (1946) 27 T.C. 267; Commissioner of Income-tax,  West        Bengal  v.  State  Bank of India, [1957]  31  I.T.R.  455  ;        Industrial   Development  and  Investments  Co.,   Ltd.   v.        Commissioner of Excess Profits Tax, Bombay, [1957] 31 I.T.R.        688;  Vadilal  Ichhachand  v.  Commissioner  of  Income-tax,        Bombay  North,  Kutch and Saurashtra, Ahmedabad,  [1957]  32        I.T.R. 569 and Commissioner of Income-tax v. Bhurangya  Coal        Co. [195S] 34 I.T.R. 802, referred to.        Commissioner  of  Income-tax, Bihar & Orissa  v.  Visweshwar        Singh, [1939] 7 I.T.R. 536 and Sir Sunder Singh Majithia  v.        Commissioner of Income-tax, C. P. and U. P. [1942] 10 I.T.R.        457, considered.

JUDGMENT:        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 50 of 1957.        Appeal  by special leave from the judgment and  order  dated        September  23, 1955, of the Bombay High Court in  Income-tax        Reference No. 19 of 1955.        R.   J. Kolah and I. N. Shroff for the appellant.        H.   N. Sanyal, Additional Solicitor-General of India,        K.   N. Rajagopala Sastri and D. Gupta, for the respondent.        1959.  May 12.  The Judgment of the Court was delivered by        BHAGWATIJ.-This  appeal with special leave arises out  of  a        judgment and order of the High Court of Judicature at Bombay        dated September 23, 1955, delivered in Income Tax  Reference        No.  19  of 1955 made by the Income-tax  Appellate  Tribunal        (hereinafter  referred to as " the Tribunal ") to the  Pligh        Court  under  s. 66(1) of the Indian Income-tax Act  (XI  of        1922)-(hereinafter  referred to as " the Act ") whereby  the        High  Court directed the Tribunal to submit a  supplementary        statement of case on the points mentioned therein.        The  appellant is a limited liability company  manufacturing        textile goods at Bhavnagar which was an Indian State  during        the  assessment  years 1943-44 and 1944-45.   For  the  said        assessment  years  the  appellant  was held  to  be  a  non-        resident, its years of account        251        being  calendar  years 1942 and 1943.   For  the  assessment        years  1943-44 and 1944-45 (account years 1942,  and  1943),        the  Income-tax Officer computed the British’ Indian  Income        of  the appellant on a proportionate basis under s.  4(1)(a)        of  the  Act.   In the account year  1942  its  total  sales        amounted  to  Rs.  66,14,852  out  of  which  sale  proceeds        amounting  to Rs. 35,92,157 as detailed below were  held  by        the  Income-tax  Officer to have been  received  in  British        India:-             Cheques on the Imperial Bank issued             by the Supply Department of the             Government of India                   Rs. 2,58,987             Sale proceeds received through Tri-             kainlal Mahasukhram                  Rs. 20,24,190             Other cheques received at Bhavnagar             but drawn on Banks in British

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           India                                Rs. 13,08,980                                                 ---------------                                                  Rs. 35,92,157        The Income-tax Officer computed the income of the  appellant        at   Rs.   27,11,136  on  a   proportionate   basis,   i.e.,        proportionate to the sales in and outside British India.  He        held that the income amounting to Rs. 14,72,267 was received        in British India under s. 4(1)(a) of the Act.  There was  no        dispute  in  regard to the sale  proceeds  received  through        Trikainlal Mahasukhram.        In  respect of the assessment year 1944-45 corresponding  to        the  account year 1943 the Income-tax Officer held that  the        sale  proceeds  amounting to Rs. 16,72,693 received  by  the        appellant  by  cheques  from the Supply  Department  of  the        Government  of  India on British India  Banks  were  taxable        under  s. 4(1)(a) of the Act.  The figure of  Rs.  16,72,693        according to the appellant, was a mistake for Rs. 12,97,631.        The  appellant  had  contended that  the  amounts  had  been        received at Bhavanagar, by cheques drawn on banks in British        India.   The  Revenue  had not disputed the  fact  that  the        cheques  had  been  actually received  at  Bhavnagarbut  had        contended that payments by cheques, though such cheques were        received at Bhavnagar,        252        were  received  in British India at the time and  the  place        where the cheques were ultimately cashed and honoured by the        banks  on which the cheques were drawn and that  until  such        encashment  of the cheques, the monies could not be said  to        have been received by the appellant.        The  Appellant preferred appeals to the Appellate  Assistant        Commissioner,  Ahmedabad  Range, against this order  of  the        Income-tax  Officer for the said two assessment years.   The        Appellate Assistant Commissioner by his two separate  orders        confirmed the orders of the Income-tax officer and held that        the  cheques  were not legal tender and were not  monies  or        monies  worth  as such and that the receipt  of  cheques  at        Bhavnagar  was not receipt of money.  The receipt  of  money        according  to the Appellate,., Assistant Commissioner,  took        place  on  actual  payments  by  the  drawee  Banks  and  he        therefore  held that the said amounts were taxable under  s.        4(1)(a) of the Act.        A further appeal was taken by the appellant. to the Tribunal        against   the  said  orders  of  the   Appellate   Assistant        Commissioner and the Tribunal by its consolidated order  for        both  the years, dated July 17, 1952, held that the  cheques        for  the said amounts of Rs. 2,58,987 and Rs.  13,08,987  in        respect  of  the assessment year 1943-44, were  received  at        Bhavnagar  and that the sale proceeds were also received  in        Bhavnagar.  The Tribunal stated inter- alia as follows:-         There is no evidence that the cheques from Government  were        received in Bhavnagar.  It is not the Department’s case that        the assessee company has a registered office elsewhere.  The        presumption is that the letters containing the cheques  were        addressed  to the assessee company at Bhawagar We  therefore        hold  that  the  cheques were received  from  Government  at        Bhavnagar   and  that  the  money  was  also   received   in        Bhavnagar."        In  doing  so,  the Tribunal followed the  Judgment  of  the        Bombay High Court in the case of Kirloskar Brothers Ltd.  v.        Commissioner of Income-tax Bombay (1).  In view of the  fact        however that an appeal had been filed        (1)  [1952] 21 I.T.R. 82.        253        in this Court against that decision of the Bombay High Court        the Tribunal further stated:-

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      " We might point out that in case the Supreme Court does not        uphold  the Bombay High Court decision in Kirloskar case  an        enquiry  will  have to be made as to  whether  the  assessee        company’s banks at Ahmedabad acted as the assessee company’s        agents for collecting the money due on the cheques."        In  respect  of the assessment year 1944-45,  the  Tribunal,        after  directing  the  Income-tax  Officer  to  verify   the        correctness  of  the figure of the amounts received  by  the        appellant by cheques from the Government (i. e., whether  it        was Rs. 12,97,631 as contended for by the    appellant    or        Rs. 16,72,693 as held by the Income-tax Officer or any other        figure), held that the cheques representing the said  amount        were  received at Bhavnagar and the monies or sale  proceeds        were  also  received in Bhavnagar.  The Tribunal  also  held        that  another amount of Rs. 5,53,447 in respect of the  said        latter  year,  being  the aggregate amount  of  the  cheques        received at Bhavnagar from other merchants was also received        in Bhavnagar.        It  may  be  pointed  out that  neither  did  the  Incometax        Officer,  when the proceedings were before him, or when  the        proceedings    were   before   the    Appellate    Assistant        Commissioner, nor did the Revenue, when the proceedings were        before  the Tribunal, at any stage contend that the  cheques        aggregating  to the said amounts in the said two years  were        not received at Bhavnagar because of the alleged posting  of        the cheques in British India and/or by reason of the allega-        tion that the cheques were sent by post and/or that the post        office was the agent of the appellant and that too, in spite        of  the decision in the case of Kirloskar Bros.  Ltd.  which        decision  had already been pronounced by then and where  the        said  question had been debated and argued by  the  Revenue.        The only ground urged by the Revenue at all material  stages        was  that because the amounts which were received, from  the        merchants or the Government, were received by cheques  drawn        on Banks in British India which were ultimately encashed  in        British India, the monies could not be        254        said  to have been received in Bhavnagar though the  cheques        were in fact received at Bhavnagar.        Being  aggrieved by the said decision of the  Tribunal,  the        respondent   (Commissioner   of   Income-tax)   filed    two        applications  under  s.  66(1) of  the  Act  requesting  the        Tribunal  to draw up a statement of the case and  refer  the        question of law arising out of the order of the Tribunal  to        the High Court.        In  the  said  applications the facts  which  were  admitted        and/or  found by the Tribunal and which were  necessary  for        drawing up a statement of the case were stated as under:-        " Regarding items of Rs. 2,58,987 and Rs. 12,97,631 received        from  the  Government  of  India  in  the  accounting  years        relevant   to  the  assessment  for  1943-44   and   1944-45        respectively  the amounts were received by cheques drawn  on        the Imperial Bank of India.  No evidence was produced by the        assessee  at any stage even before the  Appellate  Tribunal,        that  the  cheques were received at Bhavnagar, nor  was  any        evidence  produced to show that these cheques were  received        as  unconditional  discharge of debtor’s  liability.   These        cheques were collected by the Company’s bankers in  ’British        India.   The  Income-tax Officer, therefore, held  that  the        amount  was  received  in  British  India.   The   Appellate        Assistant  Commissioner confirmed the  Income-tax  Officer’s        action.  The Tribunal, however, relied upon the Bombay  High        Court decision in Kirloskar Brothers’ case and held that the        amount was received in Bhavnagar.  "        "  As  regards  items  of Rs.  13,08,980  and  Rs.  5,53,447

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      received in the accounting years relevant to the assessments        for 1943-44 and 1944-45 respectively, the relevant facts are        that  the  company received these cheques and sent  them  to        their  bankers  in  Ahmedabad  for  collection.........  The        Tribunal, held that the sale proceeds were received at Bhav-        nagar  on the basis of the Bombay High Court’s  decision  in        the Kirloskar Brothers’ case without enquiring as to whether        the  cheques were received by the company  in  unconditional        discharge of the drawer’s liability.        255        On  these facts the respondent submitted that the  following        questions of law arose out of the order of the Tribunal:-        "  (1) Was there any evidence on the record to  justify  the        Tribunal’s finding that the mere receipt by the assessee  of        cheques  of  Rs.  2,58,987 and Rs.  13,08,980  in  Bhavnagar        amounted  to receipt of the above amounts in Bhavnagar  even        though the said cheques had actually been cashed in  British        India  and  the  proceeds  thereof  were  credited  to   the        assessee’s accounts with certain Banks in British India ?        (ii) Whether in the circumstances of this case, the  income,        profits  and gains in respect of the sales amounting,to  Rs.        15,67,967  made  to  the  Government  of  India  and   other        customers were received in British India within the  meaning        of section 4(1)(a) of the Indian Income-tax Act.  "        A  similar  statement of facts which  were  admitted  and/or        found  by  the  Tribunal  was also made  in  regard  to  the        assessment  year 1944-45 and similar questions of  law  were        asked  to be referred as in the case of the assessment  year        1943-44  except  in  regard to the  change  in  the  figures        necessitated by the differences in the amounts received.        These  reference applications being  Reference  Applications        Nos.  615  and 616 of 1952-53 were kept  pending  until  the        decision  of  this  Court in the  case  of  Commissioner  of        Income-tax v. Kirloskar Bros. (1).  This Court decided  that        appeal and the companion appeal The Commissioner of  Income-        tax, Bombay South v. Messrs.  Ogale Glass Works Ltd. (2)  on        April  17,  1954. and the said Reference  Applications  were        thereafter heard and decided by the Tribunal on November  3,        1954.        It is worthy of note that the decision of this Court in  the        said two cases proceeded on the basis that on the particular        facts  of  those appeals the Post Office had  acted  as  the        agent  of the assessee and that though the cheques  were  in        fact  received  by  post by the  assessees  outside  British        India, nevertheless, by reason        (1) [1954]25 I.T.R. 547.        (2) [1955] 1 S.C.R. 185.        256        of  the fact that the assessees in the said two appeals  had        expressly  requested the Government to remit the amounts  by        cheques, the assessees had constituted the Post Office their        agent  to  receive, on their respective  behaves,  the  said        cheques which were posted by the Government at Delhi  having        addressed them to the assessees outside British India.        In  spite  of the said decisions, the Revenue did  not  urge        before  the  Tribunal  that the said aspect  of  the  matter        should  in  the present case also be referred  to  the  High        Court  for its decision and the Reference applications  were        heard  on the materials which were on the record before  the        Tribunal  when it made its orders dated July 17, 1952.   The        said  order of the Tribunal was based on the facts  admitted        and/or  found  by the Tribunal as stated  in  the  Reference        Applications  made  by  the Revenue as  aforesaid  and  this        aspect  of  the  case, viz., whether any  portion  of  these        cheques  were received by post and if so whether  there  was

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      any  request  by the appellant express or implied  that  the        amounts of those cheques should be remitted to Bhavnagar  by        post,  had  certainly not been canvassed before any  of  the        income-tax  authorities or before the Tribunal and  did  not        find its place in the order of the Tribunal and any question        of  law appertaining thereto could not be said to arise  out        of the said order of the Tribunal.        On  the  materials  as they stood on the  record  then,  the        Tribunal drew up on November 5, 1952, a statement of case in        which  all the facts and events above referred to  were  set        out.  Besides the same the Tribunal also referred in para. 8        thereof  to two letters on the record which showed that  the        cheques  from the Supply Department were received  by  post.        It  also annexed a sample agreement form on  record  between        the  appellant and its customers other than  the  Government        and  annexed thereto the copies of the  Appellate  Assistant        Commissioner’s  orders for the assessment years 1943-44  and        1944-45.  The two letters showing that the cheques from  the        Supply  Department were received by post were evidently  put        in with a view to show that the order of the Tribunal  dated        July 17,                                    257        1952, was correct in making the presumption that the letters        containing  the cheques were addressed to the, appellant  at        Bhavnagar and in holding that the cheques were received from        the Government at Bhavnagar.  There was no other reason, so%        far  as the record then stood, to make any reference to  the        said  two  letters.   Out  of the  facts  stated  above  the        Tribunal raised the following question of law:-         Whether the receipt of the cheques in Bhavnagar amounted to        receipt of sale proceeds in Bhavnagar?  "        The said Reference was heard by the High Court on  September        23,  1955, and judgment was delivered the same  day  whereby        the  High Court held that it was not possible to answer  the        question  in  the  absence of materials as  to  whether  the        cheques which were received in Bhavnagar were posted by  the        Government at the request of the appellant and the High        Court observed :-        " The question that has been submitted to us by the Tribunal        is whether the receipt of the cheques in Bhavnagar  amounted        to  receipt  of sale proceeds in Bhavnagar.   This  question        over-looks the important aspect which was dealt with both by        us  in  Kirloskar’s  case and also  by  the  Supreme  Court.        Assuming  that the cheques were received in  Bhavnagar,  the        question  still, remains as to whether if the  cheques  were        received by post, the post office was constituted the  agent        of  the  asseessee or not.  The mere receipt of  cheques  by        post  in Bhavnagar is not conclusive of the question  raised        by the Tribunal.  Unless we are in a position to say whether        the  cheques  were sent to Bhavnagar by post  without  there        being a request express or implied by the assessee the  mere        receipt  of  the cheques in Bhavnagar would  not  constitute        receipt of sale proceeds in Bhavnagar.  When we look at  the        statement  of the case there is no reference at all to  this        aspect of the case."        The  High  Court further observed that the burden  would  be        upon  the Revenue to establish that the cheques  which  were        received by post were so received at the request express  or        implied of the appellant and        258        that  therefore  the  Post  Office  was  the  agent  of  the        appellant.  But it observed in this context:-        "  But we cannot shut out the necessary inquiry  which  even        from our own point of view is necessary to be made in  order        that we should satisfactorily answer the question raised  in

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      the  Reference.   It must not be forgotten that  under  sec.        66(4) of the Income-tax Act we have a right independently of        the  conduct of the parties to direct the Tribunal to  state        further facts so that we may properly exercise our  advisory        jurisdiction."        In the result, the High Court directed that a  supplementary        statement of case should be submitted by the Tribunal on the        following points:-        "  On the finding of the Tribunal that all the cheques  were        received in Bhavnagar, the Tribunal to find 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.  Mr. Johi concedes that to        the extent that the cheques were not received by post but by        hand,  the  receipt  will  be for  the  purpose  of  tax  in        Bhavnagar."        The appellant filed a petition in the High Court on November        22, 1955, for the grant of a certificate under S. 66A(2)  of        the  Act to appeal to this Court from the said judgment  and        order of the High Court.  This application was dismissed  by        the High Court by its order dated December 8, 1955, with the        result that the appellant presented on December 22, 1955,  a        petition in this Court for special leave to appeal from  the        said  judgment of the High Court dated September  23,  1955.        This  Court  by  its order dated  March  12,  1956,  granted        special  leave  to appeal, such leave being limited  to  the        question  whether  the  High Court  had  jurisdiction  under        section  66(4)  of  the  Act  to  call  for  a  supplemental        statement  of case.  This is how the appeal has come up  for        hearing and final disposal before us.        We  have  narrated the facts and events leading up  to  this        appeal in such detail in order that we may                                    259        have the proper perspective and the background against which        the   High   Court  directed  the  Tribunal  to   submit   a        supplementary  statement  of case on  the  points  mentioned        therein.  The appeal raises an important question as to  the        nature,  scope and extent of the jurisdiction vested in  the        High  Court under section 66(4) of the Act and we shall  now        address ourselves to that question.        The  relevant  provision of sec. 66 of the Act  may  now  be        referred to :-        "  66.  (1) 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 statement of  the  case  and        refer it to the High Court:        Provided that, if, in the exercise of its powers under  sub-        section (2), the Appellate Tribunal refuses to state a  case        which  it  has been required by the assessee to  state,  the        assessee  may, within thirty days from the date on which  he        receives  notice of the refusal to state the case,  withdraw        his  application and, if he does so, the fee paid  shall  be        refunded.        (2)  If  on any application being made under sub-s. (1)  the        Appellate  Tribunal refuses to state the 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,

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      apply  to the High Court, and the High Court may, if  it  is        not  satisfied  of the 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........................................        260        (4)  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."        It is clear on a plain reading of the terms of s. 66(1) that        the  only  question  of  law  which  the  assesssee  or  the        Commissioner  can require the Tribunal to refer to the  High        Court  is " any question of law arising out of the order  of        the  Tribunal  " so that if the question of  law  which  the        assessee  or  the Commissioner requires the Tribunal  to  so        refer to the High Court does not arise out of its order  the        Tribunal is not bound to refer the same.  What has therefore        to  be  looked  at  in the first  instance  is  whether  the        question  of law thus required to be referred arises out  of        the  order of the Tribunal.  The Tribunal no doubt  has  got        before  it #he facts which are admitted and/or found by  the        Tribunal and which are necessary for drawing up a  statement        of the case and it is the facts admitted and/or found by  it        that  would  form the basis on which the statement  of  case        would be drawn and references of the question of law made by        the  Tribunal  to the High Court.  If such  facts  were  not        there whether in the order of the Tribunal or in the  record        before  it there would certainly not be any  foundation  for        the raising of any question of law either in the abstract or        otherwise and it is only a question of law which would arise        out  of  such facts which are admitted and/or found  by  the        Tribunal  that would be the substratum of the  reference  to        the  High  Court.  The facts admitted aD.d/or found  by  the        Tribunal  would  really be the foundation or  the  basis  on        which  such  questions of law could be  raised  and  neither        party would be entitled to require the Tribunal to refer  to        the  High  Court any question of law which  could  not  thus        arise out of the order of the Tribunal.  Section 66(2) which        gives the power to the High Court to require the Tribunal to        state  the  case and refer the question of law  to  it  also        proceeds on the same basis and even        261        where  the High Court exercises the power under s. 66(2)  it        can  only  require  the Tribunal to state the  case  on  any        question  of law arising out of such order.’ The  scope  and        subject-matter of the reference under s. 66(2) therefore  is        co-extensive  with that of the reference under s.  66(1)  of        the  Act  and the High Court has no  power  or  jurisdiction        under  s.  66(2)  to travel beyond the ambit  of  s.  66(1).        Section 66(2) comes into play only when the Tribunal refuses        to  state  the case on the ground that no  question  of  law        arises  and  if  the  High Court is  not  satisfied  of  the        correctness of the decision of the Tribunal, it has got  the        power and jurisdiction to require the Tribunal to state  the        case and refer the same to it.        On  the  conditions  of s. 66(1) and  s.  66(2)  being  thus        complied  with the statement of case has to be drawn  up  by        the  Tribunal  and the question of law arising  out  of  its        order  referred  to the High Court for  its  opinion.   This        statement  of case which is based, as stated above,  on  the        facts  which are admitted and/or found by the  Tribunal  may

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      not contain sufficient material to enable the High Court  to        determine  the question raised thereby and in that case  the        High Court under s. 66(4) is vested with the jurisdiction to        refer  the case back to the Tribunal to make such  additions        thereto  or alterations therein as the Court may  direct  in        that behalf only for the purpose of determining the question        referred to it.  If the question actually referred does  not        bring  out clearly the real issue between the  parties,  the        High  Court  may  reframe the question so  that  the  matter        actually  agitated before the Tribunal may be raised  before        the High Court.  But s. 66(4) does not enable the High Court        to raise a new question of law which does not arise out.  of        the Tribunal’s order and direct the Tribunal to  investigate        new  or  further  facts  necessary  to  determine  this  new        question which had not been referred to it under s. 66(1) or        s.  66(2) and direct the Tribunal to submit a  supplementary        statement  of  case.  This power and jurisdiction  which  is        vested in the High Court is to be exercised within the  four        corners  of  s.  66.  If under s. 66(1)  and  s.  66(2)  the        statement of case has to be        262        drawn up on the basis of the facts which are admitted and/or        found  by the Tribunal and this is the requirement  also  of        para.  3 of the prescribed form-the scope of such  statement        of case cannot, in our opinion, be in any manner enlarged by        the power which is given to the High Court under s. 66(4) to        make  such additions thereto or alterations therein  in  the        statement  of case as the Court may direct in  that  behalf.        The  jurisdiction  of  the  High Court  under  s.  66  is  a        consultative   or  advisory  jurisdiction.   In   order   to        satisfactorily discharge that advisory jurisdiction the High        Court  must have before it all the facts which are  admitted        and/or  found  by  the  Tribunal properly  set  out  in  the        Statements in  the  case.  It is only in those  cases  where        the statement of    case referred to the High Court under s.        66(1) and s.   66(2) are not sufficient to enable the  High,        Court to determine the question raised thereby that the High        Court  is empowered to refer the case back to the  Tribunal,        so that the Tribunal within the four corners of s. 66(1) and        s.  66(2)  may make such additions to  those  statements  or        alterations  therein as may be directed by the Court.   Even        though  the terms of s. 66(4) are wide enough to comprise  "        such  additions thereto or alterations therein as the  Court        may direct in that behalf " the scope of such directions has        got to be read in the context of and in conjunction with the        provisions  of s. 66(1) and s. 66(2) and under the guise  of        that direction the High Court cannot refer the case back  to        the Tribunal to find new facts or embark upon a new line  of        enquiry  which  would  enable either  the  assessee  or  the        Commissioner  to make out a case which had never  been  made        during  the course of the proceedings before the  Income-tax        authorities or the Tribunal so far.  Such additions  thereto        or  alterations  therein  as the Court may  direct  in  that        behalf  are additions of facts to the statement of  case  or        alterations  therein  which  though they were  part  of  the        record  before  the Income-tax authorities or  the  Tribunal        were  not incorporated in the statement of case drawn up  by        the Tribunal either because such facts or statements  though        contained  in the record were not found by the  Tribunal  or        were  omitted  to be incorporated in the statement  of  case        drawn up by it.        263        That   this  is  the  scope,  nature  and  extent   of   the        jurisdiction of the High Court under s. 66(4) of the Act  is        amply  borne  out by the authorities.  In Craddock  (H.   M.

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      Inspector  of  Taxes)  v. Zevo  Finance  Co.  Ltd.(’).  Lord        Greene, M. R. observed at p. 277:-        "  The Crown, therefore, failed before the Commissioners  to        establish  the  only  measure  of value  for  which  it  was        contending.  It was, however, suggested that this difficulty        could  be  avoided  by  sending  the  matter  back  to   the        Commissioners,  so  as to give the Crown an  opportunity  of        setting  up  a  different  measure  of  value  supported  by        different  evidence.  Even assuming that this was  the  only        difficulty in the way of the Crown’s argument, it would not,        in  my opinion, have been proper to take this  course.   The        Crown  failed in its contention on a matter of fact  and  it        must  abide  by.  the result: it would be  contrary  to  all        principle  to give it another chance to establish  by  fresh        and  different evidence a quite different contention  which,        if  it  was  desired to rely upon it,  ought  to  have  been        advanced  in the first instance.  Our task is to  deal  with        the  case  on  the  basis  of the  facts  as  found  by  the        Commissioners upon the submissions made to them, and on this        basis   the   value  of  the  investments   has   not   been        established." I        In Commissioner of Income-tax, West Bengal v. State Bank  of        India (2), Chakravartti, C.J., who delivered the judgment of        the High Court at Calcutta said at p. 551 :-        "  We  intimated to Mr. Meyer as soon as he  formulated  his        points  that  he could not be allowed to take the  first  of        them,  since it did not appear to have been taken on  behalf        of  the  Department  at any stage  of  the  proceedings  and        certainly not before the Tribunal.  It could not, therefore,        be said to arise out of the Tribunal’s order.  The  practice        followed in this Court in references under section 66(1)  of        the  Act  has  always  been to limit  the  party,  at  whose        instance a reference has been made, to the points raised and        canvassed before the Tribunal.  Questions        (1) (1946) 27 T.C. 267, 277.        (2) [1957] 31 I.T.R. 545, 551,        264        are  often  framed in a general form, such  as  whether  the        assessment  for a particular year made in a  certain  manner        was valid in view of the provisions of a certain section  of        the  Act.  A question framed in that form might be  said  to        comprise all possible contentions to which the terms of  the        relevant section might give rise, but this Court has  always        refused to treat matters arising out of questions so  framed        as entirely at large.  It has adopted and acted on that view        for the reason that this Court is only an advisory body  and        the  advice which it can be properly asked to give  is  only        advice  on matters which had been in contention  before  the        Tribunal  and which had been decided in one way  or  another        such   advice  being  sought  in  order  that  the   parties        interested might know whether the decision on those  conten-        tions  had  been  in  accordance with  law.   In  hearing  a        reference  under section 66(1), this Court does not  sit  in        appeal from the assessment and it is not called upon to give        its  advice on matters which the Tribunal was not  asked  to        decide and which the Tribunal neither decided, nor  included        in the statement of case for the opinion of this Court."        The Bombay High Court also expressed the same opinion in the        case of Industrial Development and Investments Co., Ltd.  v.        Commissioner  of  Excess Profits Tax,  Bombay  (1),  Chagla,        C.J., who delivered the judgment of the Court pointed out to        the  Tribunal what the correct procedure was with regard  to        the submission of a statement of the case and observed:-        "  It is true that very often the Tribunal may not refer  to        all  the evidence and all the facts in its appellate  order.

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      We quite appreciate the difficulty of the Tribunal as it has        to deal with a large number of cases, and it may be that  in        many cases the decision may seem obvious to the Tribunal and        it  might dispose of an appeal by a very short order.  If  a        statement of the case is, subsequently called for, naturally        the  Tribunal  would  want to elaborate  it,-,  decision  by        pointing  out  various materials and pieces of  evidence  to        which it had not referred in        [1957] 31 I.T. R. 688, 695.        265        the appellate order.  But all that can be referred to in the        Statement of the case are materials and evidence which  were        before  the Tribunal when it heard the appeal.  A  statement        of  the case is not intended for the purpose of  buttressing        up the order of the Appellate Tribunal or further fortifying        it by requisitioning to its aid materials and evidence which        were  not  before  the Tribunal but which  it  discovers  by        investigation  after the order was passed in  appeal.        " Much more so would be the case where no such material  and        evidence  were  at all in existence when the High  Court  in        exercise  of  its  jurisdiction under s. 66(4)  of  the  Act        referred the case back to the Tribunal and asked it to  make        such  additions thereto or alterations therein as the  Court        may  direct in order to enable it to determine the  question        raised thereby.  Adopting such a procedure would involve, in        effect,  raising fresh issues and taking fresh  evidence  in        order  that fresh facts may be found which  facts  certainly        were not there at the time when the matter was heard  before        the  Income-tax  authorities or before the Tribunal  in  the        first instance.        Two more decisions may be referred to in this context.   One        is a decision of the Bombay High Court in Vadital Ichhachand        v.  Commissioner  of  Income-tax, Bombay  North,  Kutch  and        Saurashtra, Ahmedabad (1) where Tendolkar, J., dealt with an        argument advanced by Counsel that the Court should send  the        matter  back to the Tribunal for determining the quantum  of        penalty, and observed:-         Then  Mr. Palkhivala says that we should,  therefore,  send        this  matter  back  to the  Tribunal  for  determining  that        question.  We do not find any power in this Court under  the        provisions  of section 66 of the Income-tax Act to remand  a        matter back to the Tribunal for determining what might  have        been  left  undetermined  by  them,  because  they  took   a        particular view of the law.  We have merely the jurisdiction        to answer the question of law referred to us, and we are not        concerned  with  any questions which are pure  questions  of        fact or its determination by the Tribunal."        34               (1) [1957] 32 I.T.R. 569, 573.        266        The  other is the decision of this Court in Commissioner  of        Income-tax  v.  Bhurangya Coal Co.  (1),  where  Venkatarama        Aiyar, J., dealt with a similar argument which was addressed        before this Court at p. 805 :-        "  The matter then came before the High Court of Patna on  a        reference under section 66(1) of the Income-tax Act, at  the        instance of the appellant.  There the contention was  raised        that  the differentiation between movable and immovables  on        which the judgment of the Tribunal rested had not been  made        at any time in the prior stages of the proceedings and  that        was  a  matter on which further evidence would  have  to  be        taken  to ascertain the intention of the parties  and  that,        therefore, the matter should be remanded for further enquiry        to  the Appellate Tribunal.  The learned Judges  refused  to        accede to this contention for the reason that no such appli-        cation was made before the Tribunal and that it was a  point

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      which ought not to be allowed to be taken for the first time        in the High Court.  On behalf of the appellant, it is stated        that  the  question as to what are immovables and  what  are        movables,  arises only on the judgment of the  Tribunal  and        that,  therefore’  an opportunity ought to be given  for  an        investigation  of this aspect of the question.  We  are  not        impressed  by  this argument.  Surely, before  the  Tribmnal        there  must have been a discussion as to the  position  with        reference  to the movables as distinct from the  immovables,        under  the transaction and if the appellant considered  that        in view of that distinction, further enquiry was called for,        it was incumbent upon it to apply to the Tribunal itself  to        order  it  and not having done so, it had no right  to  call        upon  the High Court to remand the matter for that  purpose.        In our opinion the High Court was justified in declining  to        entertain this point."        If there is no power in the High Court to remand the case to        the Tribunal for fresh findings of facts on further  enquiry        in  the manner stated above, much less would the High  Court        have  the power while exercising its jurisdiction  under  s.        66(4) of the Act to        (1)  [1958] 34 I.T.R. 802, 805,        267        refer  the case back to the Tribunal to make such  additions        thereto  or alterations therein as the Court may  direct  as        would  require the Tribunal to embark upon a fresh  line  of        enquiry  which had never been canvassed at any  time  before        the  Income-tax  authorities or the Tribunal  in  the  first        instance  and record fresh findings on evidence  adduced  by        the parties in that behalf.        Our  attention  was drawn on behalf of the  Revenue  to  the        observations  of  Fazl  Ali,  J. (as he  then  was)  in  the        Commissioner  of  Income-tax, Bihar & Orissa  v.  Visweshwar        Singh(’)  where the learned Judge dealt with  the  procedure        adopted by the Commissioner of Income-tax in sending up  the        reference in question.  The High Court sent the matter  back        to  the  Commissioner  in order that  he  may  re-state  the        statement of case.  When the matter went back to the Commis-        sioner   he  sent  up  a  restatement  of  the   case,   but        unfortunately without hearing the assessee.  The High  Court        sent the re-stated case back to the Commissioner once  again        in order that the case might be re-stated with such  further        finding  of fact as the Commissioner may consider  necessary        after  hearing the assessee.  The matter then went  back  to        another Commissioner who instead of re-stating the case,  as        he was ordered by the High Court to do, sent up a letter  to        the  High Court stating that he had not heard the  party  in        regard  to the opinion of the Commissioner, and that in  any        event  he  should not consider that he had power  within  s.        66(4)  to  vary an opinion given under s. 66(2)  if  no  new        facts were admitted.  The learned Judge pointed out that the        Commissioner was in duty bound to carry out the order of the        High Court and he should have re-heard the parties, admitted        such further evidence as he considered relevant on the point        at  issue and re-stated the case with his  opinion  thereon.        It is not clear, however, from the record as to whether  the        re-hearing of the parties and the recording of such  further        finding  as  was considered relevant on the point  at  issue        embraced  a  fresh  line  of  enquiry  which  had  not  been        entertained  at any earlier stage of the proceedings or  was        merely        (1)  [1939] 7 I.T.R. 536,554.        268        by way of elucidation of the very same points at issue which        had  been  canvassed earlier but had not been  thrashed  out

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      completely  and  properly reflected in the  finding  of  the        Tribunal.   These observations, in our opinion, do not  make        any difference to the position that we have adopted  herein,        viz.,  it is not open to the High Court in the  exercise  of        its  jurisdiction under s. 66(4) of the Act to raise  a  new        question  and to require the Tribunal to entertain  a  fresh        line of enquiry, hear the parties in regard to the same  and        record  fresh finding of fact which would enable either  the        assessee  or  the Commissioner to advance a case  which  had        never  been made by it before the Income tax authorities  or        the Tribunal and which therefore could not be said to  arise        out of the order of the Tribunal.        The  decision  of  the Privy Council  in  Sir  Sunder  Singh        Majithia v. Commissioner of Income-tax, C. P. and U. P.  (1)        was  also  referred to by the Revenue in this  context.   In        that  case the question of law which was formulated  was  in        the following terms:-        ,,  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 (II of 1899) has the deed of partnership dated  February        12, 1933, brought into existence a genuine firm entitled  to        registration  under  the provisions of section 26-A  of  the        Act."        The High Court while answering this question did not  advert        to  the relevant aspect of the question and this result  was        brought  about because the Commissioner had taken  pains  to        state  some  matters very fully,. but he had not  found  the        material  facts  as  he  should  have  done.   The   various        essential   facts   were  not  found  and  stated   by   the        Commissioner  and  the  Privy  Council  observed  that   the        referred question could not be answered until the High Court        had exercised its powers under sub-s. 4 of s. 66 of the  Act        and  left it to the discretion of the High Court to  specify        the   particular   additions  and  alterations   which   the        Commissioner should be directed to make.  Here also        (1)  [1942] 10 I.T.R. 457,461.                                    269        the nature, scope and extent of the jurisdiction of the High        Court  under  s. 66(4) of the Act was  not  specific-,  ally        discussed  and the only order which was passed 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 might think fit in the light of the judgment.        The  same  observations  which we have  made  earlier  while        discussing   the  case  of  Commissioner  of  Incometax   v.        Visweshwar  Singh (1) would apply to this case also and  the        observations  of  the Privy Council really do  not  militate        against the position as we have laid        down above.        On the facts of the present case before us it is  abundantly        clear that the only question which was canvassed before  the        Income-tax  authorities and the Tribunal before it made  its        order  dated  July 17, 1952, was whether the  cheques  which        were  received  at Bhavnagar having been cashed  in  British        India,  the monies in respect of the same should be said  to        have  been  received in British India and the  Tribunal  had        held following the case of Kirloskar Brothers’ Case that the        cheques  were received from the Government at Bhavnagar  and        the receipt of money in respect of these cheques from  Banks        in  British India related back to the receipt of the  cheque        at Bhavnagar and therefore was also received in Bhavnagar.        At  no time was the question as regards the posting  of  the        cheques in British India (Delhi) at the request, express  or        implied, of the appellant and the consequent receipt of  the

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      sale  proceeds  in  British India  ever  mooted  before  the        Income-tax  authorities or the Tribunal before the  Tribunal        made  its order on July 17, 1952, or even in  the  reference        applications  filed on September 15, 1952, nor was the  said        question  mooted  before  the Tribunal  when  it  heard  the        reference  and drew up the statement of case on November  5,        1954, even though this Court had pronounced its decision  in        Kirloskar Brothers’ Case (1) and the Commissioner of Income-        tax, Bombay South v. Messrs.  Ogale Glass Works Ltd. (2)  on        April 19, 1954.  The facts admitted and/or        (1) [1939] 7 I.T.R. 536, 554.     (2) [1954] 25 I.T.R. 547.        (3)  [1955] 1 S. C. R. 185.        270        found by the Tribunal as stated in the said applications for        reference took count of the position as it had been  adopted        by the Revenue in all these proceedings and it could not  by        any  stretch of imagination be urged that the  question  now        sought  to be mooted was ever in the minds of  the  Revenue.        The  question of law which was referred by the  Tribunal  to        the High Court for its decision was:-         Whether the receipt of the cheques at Bhavnagar amounted to        receipts  of  sale proceeds in Bhavnagar." and it  was  only        based  on  the facts admitted and/or found by  the  Tribunal        which  had  relevance only to that question and not  to  the        question which was sought to be mooted by the High Court  in        its  judgment  under  appeal.  If the  latter  question  was        allowed  to  be entertained the question would  have  to  be        recast as under:-        " 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."        -  a question quite distinct and separate from the  question        of  law which was actually referred by the Tribunal  to  the        High Court in the statement of the case drawn on November 5,        1954.        We  are,  therefore, of opinion that the High Court  was  in        error in not deciding the reference before it and  answering        the  question  on the facts disclosed in  the  statement  of        case.   We are also of opinion that in the circumstances  of        this case the High Court had no jurisdiction under s.  66(4)        to  direct the Tribunal to submit a supplementary  statement        of case on the points mentioned in its judgment.        The  result, therefore, is that the appeal will  be  allowed        and  the matter remanded to the High Court to arrive at  its        decision  on  the  question of law referred  to  it  in  the        statement  of case already submitted to it by the  Tribunal.        The respondent will pay the appellant’s costs throughout.        Appeal allowed.        271