SINHA J. - This is an application for substitution in a pending application for leave to appeal to the Supreme Court. The facts are shortly as follow : The proceedings relate to the assessment of one Gouri Sankar Lall Singha (hereinafter referred to as the 'assessee'). The assessee received certain dividends from Ukhra Estate Zamindaries Ltd. and claimed that these dividends were not taxable because they came out of the funds of the company which were not in any sence taxable profits. The Income-tax Officer held against the assessee and this was upheld by the Appellate Tribunal. The assessee thereupon requested the Tribunal to make a reference to the High Court under section 66(1) of the Income-tax Act (hereinafter referred to as the said Act). The Tribunal thereupon referred the following question under the provision of section 66(1) of the said Act :
'Whether, on the facts and in the circumstances of the case, the amount of Rs. 2,344 was rightly included as dividend in the total income of the assessee for the assessment year 1949-50 ?'
On the 2nd December, 1964, the court made an order on the reference and answered the question in the negative, that is to say, in favour of the assessee and against the department. Thereupon, the department made an application for leave to appeal to the Supreme Court against the said order. On the 7th May, 1965, when the application came up for hearing, it was contended that the assessee was dead and, therefore, the proceedings could not continue. By a letter dated 18th May, 1965, the petitioners solicitor made enquiries of the advocate for the assessee as to the date of the death of the assessee and information regarding the heirs and legal representatives of the assessee. By letter dated 3rd June, 1965, the petitioners solicitor was informed that the assessee died on the 20th April, 1965, leaving a will dated 16th November, 1964. The assessee left him surviving his widow, Smt. Jogamaya Debi, and a son, Pronob Kumar Lall Singha. Shyam Sankar Lall Singha is the brother of the deceased assessee. The said Pronob Kumar Lall Singha and Shyam Sankar Lall Singha are executors of the last will and testament of the deceased. On or about 14th July, 1965, the said Pronob Kumar Lall Singha as executor of the said unprobated will has actually made an application for substitution in Income-tax Reference No. 4 of 1964. Similar application for substitution has been made in Income-tax Reference No. 5 of 1964. In the instant case, an application has been made for substitution of the names of the widow, son and brother abovenamed. It is prayed that the names of Smt. Jogamaya Debi, Pronob Kumar Lall Singha and Shyam Sankar Lall Singha be substituted in place and stead of the assessee, Gouri Sankar Lall Singha, since deceased, in the Income-tax Reference No. 132 of 1961, and in the cause title of the application for leave to appeal to the Supreme Court. Mr. Burman, appearing for the parties sought to be added, has taken up the point that the application has abated under the provisions of Order 22, ruler 4, of the Civil Procedure Code, and, consequently, no substitution can be made.
The question, therefore, arises as to whether the provisions of Order 22 of the Civil Procedure Code apply to the facts and circumstances of this case. Order 22, rule 4, of the Code of Civil Procedure, lays down that where the sole defendant dies and the right to sue survives, the court, upon an application made in that behalf, shall cause the legal representatives of the deceased defendant to be substituted as parties and to proceed with the suit. Sub-rule (3) lays down that where within the time limited by law, no application is made under sub-rule (3), the suit shall abate as against the deceased defendant. The period of limitation is 90 days from the date of the death of the deceased defendant. If this rule applies, the application has clearly abated because it has been made beyond 90 days of the date of death of the deceased assessee.
In our opinion, however, the provisions of Order 22 do not apply in the case of a reference under section 66 of the Income-tax Act (hereinafter referred to as the said Act). The first thing we have to consider is the nature of a reference made under section 66 of the said Act. Where the assessee is aggrieved by an order made by the Appellate Tribunal, he can under sub-section (1) require the Appellate Tribunal to refer to the High Court any question of law arising out of his order. The Appellate Tribunal can either make such a reference or refuse to do so. If it refuses, an application may be made to the High Court and the High Court may require the Appellate Tribunal to state a case and to refer the matter to it, and upon receipt of such requisition, the Appellate Tribunal is bound to state a case and to refer it accordingly. When such a reference has been made, either under sub-section (1) or sub-section (2), the High Court 'shall' decide the question of law raised thereby and shall deliver its judgment thereon. Such an order is done in the advisory jurisdiction. This has been made clear in a decision of the Supreme Court, Rajputana Textiles (Agencies) Ltd. v. Commissioner of Income-tax. Nevertheless, the Appellate Tribunal must make an order conformable to such advice. Once, however, a reference is made under section 66(1) of the said Act, the High Court is bound to answer the question. Similarly, where the High Court has made an order directing the Appellate Tribunal to make a reference to it under sub-section (2), the Appellate Tribunal is bound to state a case and the High Court is bound to answer the question asked. Therefore, once a case has been stated to the High Court, there is no question of the matter abating, because of the absence of parties. The High Court is bound to answer the question and the parties are merely there in order to assist the court in arriving at its decision. If a necessary party is absent, the court will direct the Registrar to take steps to bring him before the court. To such proceedings the provisions of Order 22, rule 4, of the Civil Procedure Code, do not apply. This was held by a Bench decision of this court in In re Mrs. Sudha Tarangini Debya. This was a reference under the Assam Agricultural Income-tax Act. The provision as to stating a case before the High Court under section 28(1) of the Assam Agricultural Income-tax Act, 1939, is the same as section 66 of the said Act. McNair J. said as follows :
'It was further suggested that the assessee being dead, the proceedings had abated and no further action could be taken, and that no machinery existed whereby the executor could be substituted for the assessee in the reference. The same question came before the Patna High Court in Maharajadhiraja of Darbhanga v. Commissioner of Income-tax, where the learned judges, following the decision of Sankey J. in Smith v. Williams, held that where the proceedings had once commenced they must go forward until adjudicated upon notwithstanding the death of the assessee after the commencement of the proceedings, and that if there were no procedure entitling the legal representatives of the assessee to continue the proceedings the court would mould a convenient form of procedure to meet the case.
In our view there has been no abatement in these proceedings...'
The same view was taken by the Bench of the Allahabad High Court in Commissioner of Income-tax v. I. D. Varshani of Bahjoi. In that case, a reference was made under section 66(1) of the said Act by the Appellate Tribunal, Allahabad. While the proceedings were pending, the assessee died on 10th December, 1948. No application for substitution was made, but the court directed the Registrar to give notice to the legal representatives of the deceased. The legal representatives appeared and contested the application on the ground that there had been an abatement. Malik C.J. said as follows :
'So far as we could find, there are no provisions either in the Indian Income-tax Act or in the Rules made thereunder for bringing the legal representatives on the record, nor are there any Rules providing for abatement of the reference in case the legal representatives are not so brought within a certain time. In other words, Order XXII of the Civil Procedure Code has not been made applicable to a reference under section 66 of the Indian Income-tax Act. Section 37 of the Income-tax Act makes portions of the Civil Procedure Code applicable to proceedings before the Income-tax Officer. He has been given the right to enforce the attendance of any person and examine him on oath. He has also been given the right to compel the production of any document. He can also issue commission for examination of witnesses, etc. The same powers have been granted also to the Appellate Assistant Commissioner and the Tribunal. How a reference is to be dealt with after it is made under section 66 is provided for in sections 66(5) and 66A(1) of the Income-tax Act and all that they provide is that reference shall be heard by a Bench of not less than two judges. It may be said that since the sections provide for a hearing, it is expected that the court would before passing final orders on the reference inform the parties interested and hear them if they so desire. Section 66A(3), which dealt with appeals to His Majesty in Council and now deals with appeals to the Supreme Court, on the other hand, provides that the relevant provisions of the Civil Procedure Code are applicable to such applications. Order XXII of the Civil Procedure Code not having been made applicable and there being nothing either in the Income-tax Act or the Rules framed thereunder, it cannot be urged that the reference has abated by reason of the fact that the assessee has died.'
The same view was taken by a Bench of the Andhra Pradesh High Court in Commissioner of Income-tax v. Gulam Hyderkhan. That was also a reference under section 66(1) of the said Act and the question that arose was as to whether the proceedings abated when the legal representatives of the assessee were not brought on record within 90 days of his death. It was held that it did not. Chandra Reddy C.J. said as follows :
'The point for decision is whether this objection is sound. It is to be borne in mind that it is only by reason of Order XXII, Civil Procedure Code, that in case where a sole defendant dies and the right to sue survives, his legal representatives should be made parties and the suit should proceed. Order XXII, rule 4(3), Civil Procedure Code, provides that if no application for this purpose is made within the time limited by law, the suit should abate as against the deceased defendant. It is article 177 of the Limitation Act that prescribes a period of ninety days for making such an application. There is no other law which enacts that the proceedings would abate in the event of the legal representatives of a party not being brought on record within the prescribed time. Thus, there is no question of abatement but for the combined application of the provisions of Order XXII, Civil Procedure Code, and article 177 of the Limitation Act. Order XXII, Civil Procedure Code, is specifically made applicable to appeals by rule 11 of that Order. It is, therefore, clear that Order XXII, Civil Procedure Code, would govern both suits and appeals. The very wording of the provisions of that Order make it abundantly plain that they are not attracted to proceedings other than suit or appeal.'
Mr. Burman has cited before us a decision of Sir Ashutosh Mookerjee in Anandamoyi Dasi v. Rudra Mahanti, where it was held that the principle recognised in rule 3 of Order XXII of the Code of Civil Procedure was applicable not only to suits, but also to proceedings in revision. I do not think that it is of any benefit to consider the question as to whether the provision of Order XXII applies to other kinds of proceedings. All we are concerned with in this case is to find out whether the provision of Order XXII of the Civil Procedure Code applies to an application in the nature of a reference made to the High Court either under sub-section (1) or sub-section (2) of section 66 of the said Act, and whether, if the the assessee died after such a reference has been made to the High Court, it would be justified in stopping the proceedings at any stage before its final termination, simply because one or the other parties before it ceased to be alive. In our opinion, the principle to be applied is abundantly clear. In the English case, cited above, Smith v. Williams, the decision went on the footing that the principle of abatement under the common law did not apply to special proceedings for stating a case under section 69 of the Tax Management Act, 1880. Similarly, the general law of procedure as contained in the Civil Provisions of the said Act. As I have mentioned above, the basic principle is that once a case has been stated to the High Court it is bound to answer the question and the proceedings cannot be stopped simply because of the death or absence of one of the parties interested before it. In the case of the death of such a person an application for substitution is not necessarily of the nature as understood under the Code of Civil Procedure. The principle is that in such a case the court requires the presence of all parties interested as a matter of convenience and, where any such party dies, the court can direct the Registrar to bring before it the legal representatives of the deceased. The order made in such proceedings is advisory and the parties are there merely to assist the court. There is, therefore, no question of a technical abatement under the provisions of Order XXII of the Code of Civil Procedure.
For the reasons aforesaid, this application should succeed and an order should be made in terms of prayers (a) and (b) of the petition. There will be no order as to costs of this application.
SEN J. - I agree.