Patanjali Sastri, J.:—This is a petition under S. 66(2) of the Indian Income-tax Act praying that this Court should direct the Income-tax Appellate Tribunal to refer the following questions to this Court for decision,
“(1) Where it was found that for the assessment year 1942-1943 the business of A. Gopalaswami Chetti and Co., was the sole business of A. Gopalaswami Chetti, had the Income-tax Officer jurisdiction to give an inconsistent and different finding on the same materials and evidence that for the succeeding assessment year 1943-1944 the same business belonged to a firm of A. Gopalaswami Chetti and A. Ramanujulu Chetti.
(2) Whether the finding given by the Income-tax Officer regarding the ownership of the business of A. Gopalaswami Chetti and Co., in the assessment year 1942-1943 was not final and conclusive so as to preclude the Income-tax Officer from coming to a different finding in the succeeding assessment year in the absence of fresh facts or materials, the previous finding estopping the Income-tax Officer on grounds of natural justice and equity embodied in the principles of res judicata.”
The Tribunal refused to refer these questions on the ground that the only question that was raised and argued before it was the question of fact, namely, whether the business of A. Gopalaswami Chetti and Co., also belonged to the appellant firm or was it an independent concern belonging to one of the partners, Gopalaswami Chetti, and that the questions now sought to be raised before the High Court were not raised before it at the hearing of the appeal. The Tribunal therefore took the view that these questions did not arise from its order and accordingly rejected the application for reference made under S. 66(1) of the Act. Thereupon the appellant preferred the present application under S. 66(2) asking this Court to direct the Appellate Tribunal to state a case and to refer the questions aforesaid.
S. 66(1) of the Act provides,
“Within sixty days of the date upon which he is served with notice of an order under Sub-S. 4 of S. 33, the assessee or the Commissioner may, by application in the prescribed form, accompanied where application is made by the assessee by a fee of one hundred rupees, require the Appellate Tribunal, to refer to the High Court any question of law arising out of such order, and the appellate Tribunal shall within 90 days of the receipt of such application draw up a statement of the case and refer it to the High Court.”
It will be seen that the question of law which the Appellate Tribunal can be required to refer to the High Court under this provision is a “question of law arising out of such order”, i.e, the order of the Appellate Tribunal passed on appeal. Mr. Radhakrishnayya for the petitioner contends that a question, though not raised before the Appellate Tribunal, can well be said to “arise out of its order”, if, on the facts of the case appearing from the order, the question fairly arises. I am unable to agree with that view. I am of opinion that a question of law can be said to arise out of an order of the Appellate Tribunal only if such order discloses that the question was raised before the Tribunal. This accords with the view taken by the Lahore High Court of the provisions of S. 66(2) which in this respect used similar language before the section was amended by the amending Act of 1939. See Jumna Dhar v. Commissioner of Income-tax, Punjab, (1).
Mr. Radhakrishnayya referred us to Vadilal Lallubai v. Commissioner of Income-tax, Bombay (2), but I do not think that that decision has any application here. The question considered by the learned Judges in that case relates to the formulation of questions of law for purposes of reference to the High Court under S. 66 of the Act. It was held that under that section the assessee is not required to formulate precise questions of law, but has merely to require the Commissioner to refer to the High Court any question of law arising out of an order or a decision. Reference was also made to the Privy Council decision in M.E Moola Sons Ltd. v. Burjorjee (3), where their Lordships allowed a question of law to be raised before them for the first time. The case furnishes no useful analogy as the scope of the remedy under S. 66 of the Indian income-tax Act has to be determined with reference to the language of the statute.
I am of opinion that the Appellate Tribunal was right in refusing to refer the questions raised to this Court and this petition must be dismissed with costs, Rs. 150.
The Chief Justice:—I agree and have nothing to add.
N.R.R