Wrong citation of the tax reference provision does not defeat jurisdiction; maintainability rejection is not a refusal to state a case.

A wrong citation of the enabling provision does not by itself make a reference application non est where the Tribunal otherwise has jurisdiction over the substance of the request. An application filed under section 256(1) of the 1961 Act in relation to an order under the 1922 Act could be treated as one under section 66(1) of the 1922 Act, and the Tribunal should decide it on merits. A petition under section 66(2) does not lie where the Tribunal has rejected the application solely as not maintainable, because that provision is attracted only after a refusal to make a reference on the legal merits.

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Issues: (i) Whether a reference application filed under section 256(1) of the Income-tax Act, 1961 in relation to an order passed under section 33(4) of the Indian Income-tax Act, 1922 was non est, or could be treated as an application under section 66(1) of the 1922 Act; (ii) whether, when such an application is dismissed as not maintainable, a petition under section 66(2) of the 1922 Act lies for compelling a reference.

Issue (i): Whether a reference application filed under section 256(1) of the Income-tax Act, 1961 in relation to an order passed under section 33(4) of the Indian Income-tax Act, 1922 was non est, or could be treated as an application under section 66(1) of the 1922 Act.

Analysis: The two provisions were held to be in pari materia. The proper forum was the Tribunal itself, and its jurisdiction did not depend on the exact provision cited in the application. A wrong reference to the statutory provision did not divest the Tribunal of jurisdiction where the substance of the request was within its competence. The Tribunal should therefore have treated the application as one made under section 66(1) of the 1922 Act and examined it on merits.

Conclusion: The application was not non est; the Tribunal erred in refusing to entertain it and should have dealt with it as an application under section 66(1) of the 1922 Act.

Issue (ii): Whether, when such an application is dismissed as not maintainable, a petition under section 66(2) of the 1922 Act lies for compelling a reference.

Analysis: A petition under section 66(2) lies only where the Tribunal has refused to make a reference after considering whether a question of law arises. Where the Tribunal declines to go into the merits and rejects the application as not maintainable, the remedy under section 66(2) is not attracted for securing a mandamus to make a reference.

Conclusion: Such a petition does not lie when the application has been rejected solely as not maintainable.

Final Conclusion: The writ petition succeeded, the impugned orders were quashed, and the Tribunal was directed to decide the reference application on merits after treating it under the correct predecessor provision.

Ratio Decidendi: Wrong citation of the enabling provision does not destroy jurisdiction where the tribunal otherwise has competence; the substance of the application governs, and a refusal on mere maintainability grounds does not amount to a refusal to state a case on the merits.

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