1981 (8) TMI 29

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...., on the facts and in the circumstances of the case, and on proper construction of section 4 of the Indian Partnership Act, 1932, section 2(23) and section 64 of the Income-tax Act, 1961, the assessee, individual ( ......*1) was not the partner of the firm ( ......*2) and whether the share of profits arising in the hands of the minor sons of the assessee from the said firm is not rightly includible in the assessment of the assessee, individual u/s. 64(1)(ii) of the Income-tax Act, 1961 ?" [We have omitted the name of the assessee *1 and the name of the partnership firm *2 as they are different in the two different cases]. The Tribunal has refused to refer the question on two grounds. First, the income of the minors could not be includ....

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....urisdiction while hearing a reference u/s. 259 and 260 of the Act. The jurisdiction of the High Court is purely advisory. Apart from the assessee and the revenue, the Tribunal is also a beneficiary of a firm decision of the High Court, on a question of law. As such, when one of the beneficiaries refuses to make a reference, the High Court ought to be slow and circumspect to disturb the decision of the Tribunal. However, if the Tribunal makes a patent error or fails to exercise the jurisdiction vested in it by s. 256(1) of the Act the High Court must step in and exercise its power u/s. 256(2) of the Act. Bearing in mind the above principles let us proceed to consider the contentions. The common ground in both the applications is a general....

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....point of law " cannot be equated with the expressions " question of law ". The question must be a disputed or disputable question of law. The object of reference is to get a decision from the High Court on a problematic or debatable question and not an obvious and simple point of law, although somehow the determination is somewhere linked up with a provision of law. The meaning of the term " question ", in the context, means a subject or point of investigation, examination or debate, a problem ; as delicate or doubtful question. In our opinion, the Tribunal is obliged to refer only a question of law which calls for investigation, examination, debates or when it is a dubious problem. However, if a point of law decided by the Tribunal is posi....