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Income-tax Reference No 47 of 1978, decided on 29th October1986
---Ss. 66(1)(2) & 34--Reference--Finding of Tribunal that proceedings could not be initiated and case re-opened under S. 34 had not been challenged by Department before Tribunal--View taken by the Tribunal in its order dismissing application under S. 66(1), held, was correct in circumstances.
K. Salahuddin for Applicant.
Nemo for Respondent.
Date of hearing: 29th October, 1986.
--This is an application under section 66(2) of the Income-tax Act, 1922 by the department. The assessment year is 1972-73. After the order dated 18-3-1977 of the Income-tax Tribunal quashing the proceedings taken by the Assessing Officer re-opening the case under section 34 of the Income-tax Act, an application had been filed under section 66(1) of the Income-tax Act for referring several questions to this Court for opinion but by order dated 7-6-1975 the Income-tax Tribunal rejected the application observing as follows:-
"We, however, find that the respondent's assertion in this case is correct in as much as no objection has been taken to the quashment of the proceedings initiated under section 34. Similarly the findings on merits are entirely findings of facts. Therefore, even if we, for the sake of argument, refer the case under section 66(1), the matter would be only of an academic nature, as our findings against actions initiated under section 34, would continue to bar any further assessments for these years since these findings have not been questioned by the Department.
For these reasons, we see no justification for referring the question and the application will accordingly be rejected."
In the circumstances the present application under section 66 (2) of the Income-tax Act, 1922 has been filed by the respondent/ assessee. We have heard Mr. Salahuddin, learned counsel for the department. No one has appeared on behalf of the respondents.
On a question from the Court, learned counsel for the department frankly conceded that the finding of the tribunal that proceedings could not be initiated and case re-opened under section 34 of the Income-tax Act had not been challenged by the department before the A Tribunal. In the circumstances, the view taken by the Tribunal in their order dated 7-6-1975 dismissing the application under section 66(1) is correct.
As a result, this application under section 66(2) is dismissed as the questions mentioned in the application of the department do not arise for our consideration for the reasons mentioned hereinabove.
M.B.A./5141/K Application dismissed.
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