Puttaswamy, J.
1. In obedience to an order made by this court in CP No. 182 of 1977, the Income-tax Appellate Tribunal, Bangalore Bench, Bangalore ('Tribunal'), at the instance of the assessee, has referred the following question of law for the opinion of this court :
'Having regard to the terms of the will under which the bequest was made to the assessee, whether the amount spent by her for discharging her obligation under the terms of the will to maintain her children should be deducted before ascertaining her assessable income ?'
2. In order to appreciate the question referred to us, it is necessary to notice in the first instance, the facts that are not in dispute and as found by the Tribunal.
3. For the assessment year 1969-70, relevant to the accounting year ending on December 31, I968, the assessee filed her return under the Act before the Income-tax Officer (Assessment), Udupi Circle, Udupi ('ITO'), inter alia, claiming a sum of Rs. 14,000 as deduction towards maintenance expenditure on her children. For the assessment years 1970-71 and 1971-72, relevant to the accounting years ending December 31, 1969, and December 31, 1970, the assessee did not file her return. But, in the proceedings initiated against her by the Income-tax Officer for the aforesaid two years also, the assessee claimed the same deduction of Rs. 14,000 on the same ground which was rejected by the Income-tax Officer for all the said three years.
4. Aggrieved by the said orders of the Income-tax Officer, the assessee filed appeals before the Appellate Assistant Commissioner of Income-tax, Bangalore Division, Bangalore ('AAC'), who by his common order dated December 7, 1975 (Annexure-C), allowed them and annulled the assessments made against the assessee. Aggrieved by the said order of the Appellate Assistant Commissioner, the Revenue filed appeals in ITA Nos. 915 to 917 (Bang)/1975-76 before the Tribunal which by its order dated November 19, 1976 (Annexure-D), allowed them and remitted the appeals to the Appellate Assistant Commissioner for fresh disposal, without, however, adjudicating on merits at all.
5. On the Tribunal making that order, the assessee moved it to refer the following question of law for the opinion of this court as arising in the case :
'Whether, on the facts and in the circumstances of the case, the Tribunal is justified in upholding the action of the Income-tax Officer in reopening the assessment for the assessment years in question and bringing to tax the maintenance expenditure of Rs. 14,000 claimed by the assessee ?'
6. On April 1, 1977, the Tribunal rejected the said application made by the assessee expressing that that question was concluded by a decision of the Supreme Court. On the assessee approaching this court under section 256(2) of the Act to direct the Tribunal to refer the aforesaid question of law for the opinion of this court on December 6, 1978, a Division Bench of this court, consisting of Chandrashekhar C.J. and Venkataramiah J. (as His Lordship then then was), allowed the said C. P. filed by the assessee and directed the Tribunal to refer the question of law set out by us at para 1 supra (p. 671 supra) as arising in the case with which it complied.
7. Sri S. P. Bhat, learned counsel for the assessee, at the very threshold, urges that on the order made by the Tribunal, the question directed by this court and now referred for our opinion, did not arise for determination and, therefore, we should reframe the same as hereunder, examine and then answer the same in favour of his client.
8. The question to be reframed as now suggested by Sri Bhat :
'Whether, on the facts and in the circumstances of the case, the Tribunal is justified in upholding the action of the Income-tax Officer in reopening the assessment for the assessment years in question ?'
9. Sri K. Srinivasan, learned senior standing counsel for the Income-tax Department, appearing for the Revenue, opposing the prayer of Sri Bhat, contends that the same is not a case of reframing the question already referred for our opinion, but is a case of framing an altogether new question, which is now impermissible and cannot be exercised by us under the Act.
10. We are of the view that the objections urged by Sri Srinivasan are well-founded and must be upheld.
11. We need hardly say that we cannot sit in judgment over the earlier order made by this court. What is true of us is also true of the Tribunal.
12. When the Tribunal has referred a question for the opinion of this court, to bring out the real controversy, we can undoubtedly reframe the same, examine and answer the same. On this power, there is no dispute at all. But, that is not the position here.
13. What the assessee now seeks us to do is to frame an altogether new question as arising in the case and then answer the same. We are of the view that section 256 of the Act does not empower us to do the same. We cannot, therefore, accede to the very first prayer of Sri Bhat.
14. Both sides do not dispute that the question referred to us does not really arise for our determination from out of the order of the Tribunal. When that is so, there is hardly any justification for us to answer the same.
15. In the light of our above discussion, we decline to answer the question referred to us. But, in the circumstances of the cases, we direct the parties to bear their own costs.