TaxTMI 
TaxTMI 
TaxTMI 
2026 (3) TMI 304
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....xable turnover under the Bombay Sales Tax Act, 1959 even though the same amount of hire purchase premium is subject to the levy of service tax under Chapter V and VA of the Finance Act, 1994? 2) Whether on the facts and circumstances of the case and evidence on record the Tribunal was justified in holding that hire premium charges recovered by the hirer of the vehicles forms part of sale price as defined under section 2(29) of the B.S.T. Act, 1959, ignoring the fact that Parliament in exercise of its powers under entry 97 of list I to the Constitution of India had held such hire premium charges are taxable under Finance Act, 1994? 3) The Statement of facts and necessary copies of documents shall accompany the Reference Application. 2. The proceeding of this reference are also circulated at the instance of the Applicant seeking withdrawal of the reference. On behalf of the Applicant (Original Appellant before the Tribunal), it is contended that the Applicant is no more interested in the reference being answered as the Tribunal has already held in favour of the department in the Second Appeal. It is hence stated that obviously the revenue would also not be intere....
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....arcener, whose family consists of wife and daughter, in the status of an individual?" The assessee has filed an application for being permitted to withdraw the reference saying that he is no longer interested in "prosecuting the reference". Shri Tankha, learned counsel appearing for the assessee, also prayed that the assessee be allowed to withdraw the reference. Shri Khirwadkar, learned counsel appearing for the department, stated that the department had no objection if the; question referred for the decision is not answered because of the unwillingness of the assessee to proceed further in the reference made at his instance. The question, therefore, that arises for consideration is whether the assessee can be permitted to withdraw the reference. Section 27of the Act, which deals with the making of a reference to the High Court, does not say anything about the withdrawal of a reference before the case is fully heard and argued. It would, therefore, appear that in the absence of a provision in the Act permitting the party at whose instance the reference has been made by the Tribunal to withdraw it, the reference cannot be allowed to be withdrawn. A reference is no....
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....draw it and quite different to hold that when the party causing a reference to be made chooses not to appear at the hearing or having entered an appearance only submits that it is not interested in the reference being answered, then the High Court is not bound to answer the reference and can decline to answer the question referred to it for decision. There is ample authority in support of the view that when a party who has caused a reference to be made under Section 66 of the Indian Income-tax Act, 1922, does not appear at the hearing of the reference, the High Court is not bound to answer the question referred and should not do so. In M.M. Ispahani Ltd. v. Commissioner of Excess Profits Tax, [1955] 27 I.T.R. 188, 191 the question arose whether the High Court is bound to answer a reference under Section 66 if the assessee, at whose instance the reference was made, does not appear at the hearing of the reference. The learned Chief Justice of the Calcutta High Court, after referring to Section 66(5) of the Indian Income-tax Act, 1922, said ; It will be noticed that the section is expressed in mandatory language and deploys the word 'shall' throughout its man....
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....d by the Calcutta High Court that there is no provision in the Income Tax Act under which the party who has caused a reference to be made can be allowed to withdraw it after the Tribunal has made a reference to the High Court; and that the reference must be decided by the High Court unless the party who has caused the reference to be made fails to appear and to take any interest in the matter. In that case, the assessee, at whose instance the reference was made, appeared and stated before the court that it did not want to pursue the reference any further and should be allowed to withdraw, it as the question referred had been finally concluded against it by an earlier decision of the Calcutta High Court affirmed by the Supreme Court, The Calcutta High Court answered the reference as there was a hearing of the case when the assessee appeared and stated before the court that the point had been concluded by a previous decision of the Calcutta High Court affirmed by the Supreme Court. This decision of the Calcutta High Court supports the view that once a reference is made by the Tribunal, the party at whose instance it has been made cannot be allowed to withdraw it. In view of ....