Reference under section 66(2) requires a prior section 66(1) application; factual yield estimates do not raise a question of law.

Section 66(2) of the Indian Income-tax Act, 1922 could be invoked only by an assessee who had first made a proper application under section 66(1) and been refused a reference; a party who did not follow that statutory route could not compel the Tribunal to state a case. The High Court also treated the Tribunal's estimate of deficit yield of cut mica as a factual finding based on the record, not a question of law. On both grounds, the application was not maintainable and no reference was warranted.

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Issues: (i) Whether an assessee who had not filed an application under section 66(1) of the Indian Income-tax Act, 1922, could invoke section 66(2) to require the Tribunal to state a case. (ii) Whether the Tribunal's estimate of the deficit yield of cut mica gave rise to any question of law warranting a reference under section 66(2).

Issue (i): The reference jurisdiction under section 66 is confined to the statutory scheme of an application under section 66(1) followed, if refused, by recourse under section 66(2). The power under section 66(2) is in the nature of mandamus and is available only to the party who had made the demand for reference under section 66(1) and was refused. A party who did not file a proper application under section 66(1) cannot later seek to invoke section 66(2) merely because another party had moved the Tribunal.

Conclusion: The application under section 66(2) was not maintainable and the objection of the Revenue was rightly upheld.

Issue (ii): The Tribunal had estimated the deficit yield on the basis of material in the records and accounts. The quantum and justification of such an estimate were questions of fact, and the finding was supported by ample material. No question of law arose from the Tribunal's order on the issue sought to be referred.

Conclusion: No reference was warranted on merits because the question raised was purely factual.

Final Conclusion: The assessee failed both on maintainability and on the existence of any referable question of law, so the application was rejected with costs.

Ratio Decidendi: The High Court's power under section 66(2) is confined to compelling a reference only when the applicant had itself invoked section 66(1) and the Tribunal wrongly refused to state a case on a question of law arising from its order; questions resting on factual estimation do not justify a reference.

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