TaxTMI 
TaxTMI 
1975 (2) TMI 23
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.... made long after the period of ninety days allowed by article 177 of the Limitation Act which corresponds to article 120 of the new Limitation Act, 1963, and for that reason in view of Order XXII, rule 4 of the Code of Civil Procedure, the case has abated as a whole. Learned counsel for the petitioner has, however, contended that there is no question of abatement in a case of this nature for the reason that the provisions aforesaid have no application to a case of reference under section 256 of the Act. He has relied upon several decisions in Commissioner of Income-tax v. I. D. Varshani , Commissioner of Income-tax v. Gourishankar Lal Singha and Commissioner of Income-tax v. His Highness Maharaja Shri Sawai Man Singh of Jaipur and a Special Bench decision of this court in the case of Maharajadhiraja of Darbhanga v. Commissioner of Income-tax. It appears that the uniform view taken by different High Courts, including this court, in Commissioner of Income-tax v. I. D. Varshani of the Allahabad High Court, Commissioner of Income-tax v. Gourishankar Lal Singha of the Calcutta High Court, Commissioner of Income-tax v. Maharaja Shri Sawai Man Singh of Jaipur of the Rajasthan High Cour....
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....lcutta High Court referred to above. After reviewing the decisions of the Allahabad, Andhra Pradesh and Patna High Courts which have been referred to above, the learned judges held, as in other cases, that Order XXII of the Code had no application and that there was no abatement of a case of reference under the Act on the death of an assessee and in the absence of non-substitution of his legal representatives. In the Patna case , a Special Bench of their Lordships were called upon to answer the same question as in the instant case. Courtney Terrell C.J. said that proceedings before the High Court on reference under section 66(2) of the Act is not a suit and no question of abatement, therefore, arises. The learned Chief justice said further that the High Court was bound to deal with a reference whether or not the assessee or his heirs appear. Das J. relied on a decision in the case of Smith v. Williams for the proposition that " where the proceedings have once commenced, they must go forward until adjudicated upon, notwithstanding the death of the assessee after the commencement of the proceedings, and that if there be no procedure entitling the legal representative of the assessee ....
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....se and lays down that: " In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force." The Income-tax Act contains provisions in sections 256 to 260 in respect of references under the Act. Next, it provides in sections 261 to 262 for appeals to the Supreme Court. Section 256 lays down how a statement of the case is to be drawn up and referred to the High Court. Section 257 provides for a similar statement of case to the Supreme Court in certain cases. Section 258 is in respect of the power of the High Court or the Supreme Court, section 259 provides how the case is to be heard by the High Court and section 260 lays down how the decision of the High Court or the Supreme Court is to be given. Section 261 provides for appeal to the Supreme Court and section 262 provides for the manner in which the appeal is to be heard by that court. It will appear from the aforesaid provisions relating to the High Court that there is no procedure sim....
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....essity of making certain provisions alone thereof applicable to proceedings under the Act. The conclusion is obvious that only those provisions of the Code which have been specifically made applicable to proceedings under the Act do apply. There is another way of looking at this and that is, that abatement of a suit or appeal after a certain time is in the nature of penalty which is the result of non-compliance with the statutory provision of law. It results in the extinguishment of the right of a plaintiff or an appellant to prosecute the suit or appeal any further. In the absence of any such penal provision in the Income-tax Act, it would be unfair to read such a provision contained in the Code as incorporated in the Income-tax Act and thereby saddle a litigant with an obligation which a litigant, prima facie, does not suffer from. If that were to be done, it would affect a special law like the Income-tax Act and the special jurisdiction conferred thereby on the High Court. In my view, therefore, Order XXII of the Code has no application even for this reason. Even if I were to assume that section 141 of the Code has application to a proceeding in a case of reference, it lay....