1961 (4) TMI 6 - SUPREME COURT

Whether it was not open to the High Court in the present reference to go into the question as to the applicability of the proviso to section 10(2)(vii), as it was neither raised before the Tribunal nor considered by it, and could not, therefore, be said to be a question arising out of the order of the Tribunal, which alone could be referred for the decision of the court under section 66(1)?

Whether the sum of ₹ 9,26,532 was property included in the assessee company's total income computed for the assessment year 1946-47?

Held that:- In the present case, the question actually referred was whether the assessment in respect of ₹ 9,26,532 was proper. Though the point argued before the income-tax authorities was that the income was received not in the year of account but in the previous year, the question as framed is sufficient to cover the question which was actually argued before the court, namely, that in fact the assessment is not proper by reason of the proviso being inapplicable. The new contention does not involve reframing of the issues. On the very terms of the question as referred which are specific, the question is permissible and was open to the respondents. Indeed the very order of reference shows that the Tribunal was conscious that this point also might bear on the controversy so that it cannot be said to be foreign to the scope of the question as framed. In the result, we are of opinion that the question of the applicability of the proviso is really implicit, as was held by Chagla, C.J., in the question which was referred, and, therefore, it was one which the court had to answer. Appeal dismissed.