Restoration of a section 256(2) reference application is not maintainable when the Income-tax Act provides no such remedy.

An application for restoration of a reference application under section 256(2) of the Income-tax Act was held not maintainable because the Act contains no provision permitting restoration of such an application. The Orissa HC further held that the Code of Civil Procedure does not apply to the Court's advisory jurisdiction so as to attract inherent powers for that purpose. Since the reference application had already been heard and decided on merits, the fact that it was taken up ex parte did not create any right to restoration, and the restoration request was dismissed.

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Issues: Whether an application under section 256(2) of the Income-tax Act, 1961, seeking restoration of a reference application decided on merits in the absence of the petitioner or his counsel, was maintainable.

Analysis: The application sought restoration of an order refusing to answer questions of law under section 256(2) on the ground that the petitioner had been unable to appear because of illness and that the earlier hearing had proceeded ex parte. The Court held that the Income-tax Act contains no provision enabling restoration of an application under section 256(2). It further held that the Code of Civil Procedure does not apply so as to attract inherent powers in the Court's advisory jurisdiction for restoring such an application. Where the reference application had already been heard and decided on merits, the fact that it was heard ex parte did not confer any right of restoration.

Conclusion: The application for restoration was not maintainable and was dismissed.

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