1986 (8) TMI 42

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....iled on December 5, 1977, under section 256(1) of the Income-tax Act, 1961 hereinafter called " the 1961 Act "), sought reference of four questions claiming the same to be questions of law arising out of the order dated February 28, 1977, of respondent No. 1 passed under section 33(4) of the Indian Income-tax Act, 1922 (hereinafter called " the 1922 Act "), in Income-tax Appeal No. 5436 of 1968-69 in respect of the assessment year 1946-47 pertaining to Satya Paul Virmani (Hindu undivided family), respondent No. 2, the assessee. Respondent No. 2 raised preliminary objections in writing seeking rejection of the reference application in limine on the following grounds : (i) That in respect of an order passed by respondent No. 1 under sectio....

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....er invoked the jurisdiction of this court by making a petition to this court under section 66(2) of the 1922 Act which was registered as Income-tax Case No. 29 of 1979 (CIT v. Shri Satya Paul Vimani) (HUF) which is still pending. Since, however, doubt was entertained whether the aforesaid income-tax case would be maintainable against the impugned orders, the present writ petition was filed. Having heard learned counsel for the parties, I am of the considered view that respondent No. 1 was wrong in concluding that the application filed before it by the petitioner under section 256(1) of the 1961 Act was non est. The provisions of section 256(1) of the 1961 Act and section 66(1) of the 1922 Act are in pari materia. The petition had been fi....

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....on 66(2) of the 1922 Act does not lie for the issuance of mandamus for making a reference in the case as respondent No. 1 refused to go into the merits of the application for reference. He contends that an application under section 66(2) ibid would lie only in case where the respondent had refused to make a reference on the ground that no question of law arises from its appellate order. This position of law has not been disputed by learned counsel for respondent No. 2. As a result, I allow this petition, quash the orders dated August 5, 1978, annexure P-1, and dated November 17, 1978, annexure P-2, passed by respondent No. 1 and direct respondent No. 1 to adjudicate upon the application made by the petitioner before it on December 5, 197....