1. The present application under Section 27(1) of the Wealth-tax Act, 1957, has been filed against the order of the Tribunal dated 29.8.1988 passed under Section 35 of the Act in M.A. No. 166/Bom./1987.
2. At the outset, we pointed out to the learned counsel for the assessee as to how the present application was maintainable. Section 27(1) of the Wealth-tax Act 1957 only permits an application to be made to the Tribunal to refer to the High Court any question of law which arises out of an order passed under Section 24 or under Section 26 of the Wealth-tax Act. In the present case, the order dated 29-8-1988 is an order passed by the Tribunal under Section 35(l)(e) of the Wealth-tax Act and if that was so, how an application under Section 27(1) would lie against this order. The question we posed before him was whether the order dated 29-8-1988 was an order under Section 24 of the Act or an order traceable to Section 35 of the Act and hence a miscellaneous order passed on a miscellaneous application.
3. The learned counsel for the assessee relied upon a decision of the Allahabad High Court in Chemicals & Allied Products v. ITAT [1989] 175 ITR 344 for the proposition that against an order under Section 254(2) of the Income-tax Act, 1961 which again permitted the Tribunal to rectify its order reference under Section 256(1) of the Act would lie against such an order. He next relied upon the decision of the Kerala High Court in the case of Kil Kotagiri Tea & Coffee Estates Co. Ltd. v.ITAT [1988] 174 ITR 579 to support his argument that the present order passed on the miscellaneous application could be made a subject to the provisions of Section 27( 1) of the Wealth-tax Act. As regards the decision of the Allahabad High Court the same was in the context of Section 254(2) of the Income-tax Act, it is seen that in the Wealth-tax Act there is no section which is parallel to Section 254(2) of the Income-tax Act. Section 254(2) is a specific section, which empowers the Tribunal to rectify any mistake apparent from record and amend any order passed by it under Section 254(1). Such an amending order would be an order under Section 254 of the Act and hence subject to the provisions of Section 256(1) of the Income-tax Act. However, under the W.T. Act no such similar provision exists under Section 24 which is parallel to Section 254(2) of the Income-tax Act. The power to rectify or amend an order under Section 24 of the Wealth-tax Act is given to the Tribunal only under Section 35(l)(e) of the said Act. Section 27 of the Wealth-tax Act only allows orders passed by the Tribunal under Section 24 or under Section 26 to be the subject matter of its application. An order under Section 35 is expressly excluded from the application of Section 27. The authorities cited by the learned counsel for the assessee are, therefore, distinguishable and are of not much assistance in deciding this issue, as they deal with Section 254(2) of the Income-tax Act, 1961 and not with the provisions of the Wealth-tax Act 4. In this connection, it is useful to refer to the provisions of the Income-tax Act, 1922. Under the said Act, the Tribunal was to make a reference to the High Court under Section 66(1) of the said Act. The main order which the Tribunal passed on an appeal was under Section 33(4) of the said Act. An order for rectification could be passed by the Tribunal under Section 35(2) of the said Act. The Punjab High Court in R.B.L. Banarsi Dass &Co. Ltd. v. ITAT [1959] 35 ITR 624 had an occasion to examine this issue whether a reference under Section 66(1) could lie against the order of the Tribunal passed under Section 35 of the said Act. The Hon'ble High Court after considering various decisions of the other High Courts clearly held that when the Tribunal rectifies its order passed under Section 33(4) on the main appeal by applying the provisions of Section 35 such order of rectification is an order passed under Section 35 which cannot be referred to the High Court under Section 66.
5. The Honourable Delhi High Court in the case of CWT v. Smt.Illa Dalmia has also expressed that an order of the Tribunal under the Wealth-tax Act passed on a miscellaneous petition is a miscellaneous order against which no reference can lie under Section 27 of the Wealth-tax Act. The said decision was given after taking note of the Supreme Court's decision in CIT v. MTT. AR. S. AR. Arunachalam Chettiar [l953] 23 ITR 180. This decision of the Supreme Court has also been considered by the Punjab High Court in the judgment referred to above.
6. In our opinion, when the Tribunal refuses to rectify its earlier order, such order refusing the rectification would be an order under Section 35 of the Wealth-tax Act or otherwise, it would be a miscellaneous order on a miscellaneous application passed by the Tribunal under its inherent power. In the present case, when the Tribunal refused to rectify its original order passed under Section 24 of the Wealth-tax Act, the original order holds good against which we are told that a reference under Section 27(1) has already been granted by the Tribunal. The order in the present case with which we are concerned refusing to rectify the order in appeal is an order passed by the Tribunal under Section 35 or under its inherent powers. An application under Section 27(1) of the Wealth-tax Act against such an order is not maintainable as stated earlier, Section 27 is very clear in its terms and specifically states that a reference to the High Court on a question of law can only lie against the orders passed by the Tribunal Under Section 24 or Under Section 26 of the Act 7. We, therefore, for the above reasons, dismiss the application of the assessee filed under Section 27(1) of the Wealth-tax Act, 1957, as being not maintainable.