THE COMMISSIONER OF INCOME TAX, DELHIversusBANSI DHAR & SONS

    850


A                  THE COMMISSIONER OF INCOME TAX, DELllI
                                       v.
                             liANSI DHAR & SONS

                              DECt:!'lllEK 19, 1985

B            [V .D. TULZAPURKAK AND SABYASACHI MUKHARJI, JJ, J

          Indian Income Tax Act 1922 : Section 66 and Income Tax Act
    1901 : Section 256 - High Court - Jurisdiction of - To grant stay
    or pass interim orders in pending references.

          Interpretation of statutes : Words of statute - Judicial
c   construction of words by Superior court - How far useful in
    con~truing   identical words in another enactment.

          The Assesse•. was a Hindu Undivided Family. The father of
    the Karta of the HUF died in an air crash. On his death a swn of
    over Rs. 2 lakhs was received by the Karta from the Insurance
    Company on account of the insurance policy covering the life of
D   his father. The income ·derived from the said amount was treated
    as his personal income and assessed in his personal assessment,
    and it continued to be assessed in the personal assessment of the
    Karta even after formation of the HUF on his marriage and the
    birth of a son. This position continued till the assessment year
    1959-60.

          For the first time in the assessment yesr 1960-61 the
    Income Tax Officer treated the income from the insurance amount
    as that of the Hlff and assessed the income in the hands of the
    HUF. Being aggrieved the assessee appealed and the Appellate
    Assistant Commissioner set aside the assessment holding that the
F   income was the personal income of the Karta and not of the HUF.

          The Revenue preferred an appeal to the Income Tax Appellate
    Tribunal. A similar appeal was also pref erred to the Tribunal by
    the Revenue for assessmev.t year 1962-63. Buth the appeals were
    disposed of by a common order, whereby it was held that the
G   income in question was that of the HUF and was liable to be
    assessed as such.

          The Tribunal referred to the High Court at the instance of
    the assessee-HUF the question, "whether the amount received from

H
                      c.r.T. v. BANS! DHAR                   851

                                                                    A
the Insurance Company on account of the accident Insurance
Policy covering the risk of his father was correctly treated as
ancestral property." The assessee also filed applications for
injunction and stay under section 151 of the Code of Civil
Procedure invoking the inherent jurisdiction of the High Court.
                                                                    B
      In the applications for stay it was contended that for the
subsequent years 1963-64 & 1964-65 similar appeals had been filed
by the Revenue, before the Tribunal and were pending, that for
the assessment years 1965-66 to 1969-70 the orders of the
Appellate Assistant Colmlissioner were against the assessee and
the asseasee-HUF had preferred appeals to the Tribunal which were
also pending, that in the said appeals preferred by the assessee    c
HUF, on application by the assessee the Tribunal had granted stay
of recovery of the tax demanded, on the condition that the
assessee should furnish adequate security, that since the matter
relating to the two assessment years (1960-61 and 1962-63) were
before the High Court under section 66(1) of the Indian Income
                                                                    D
Tax Act, 1922/section 256(1) of the Income Tax Act, 1961 similar
order of stay should be granted by the High Court because
prejudice would be caused to the assessee if in spite of full tax
being paid by the karta in his personal assessment, the HUF is
asked to pay tax over again in respect of the same income.
                                                                    E
      The Revenue opposed the aforesaid applications for stay,
contending in its counter-affidavit that under the provisions of
the Income Tax Acts of 1922 and· 1961 the High Court exercised
only an advisory or consultative jurisdiction, and consequently
had no jurisdiction or power to grant stay of the recovery of tax
as prayed for in the application, and that grant of stay by the
High Court and this court had in fact been prohibited by the two
                                                                    F
Acts of 1922 and 1961.

      The High Court rejected the preliminary objections raised
by the Revenue and granted stay of realisation of taxes. It found
that there should be stay on terms and granted stay on condition
that the assessee should furnish adequate security for the said
                                                                    G
amount to the satisfaction of the concerned Income Tax Officer.

      In the appeals to this Court: on the question of juris-
diction of the High Court and Supreme Court to grant stay or pass
interim orders in pending references under section 66 of the
Indian Income Tax Act, 1922 and section 256 of the Income Tax
Act, 1961.
                                                                    H
      Allowing the Appeals to this Court,
     852              SUPREME COURT RllPORTS     [1985] SUPP. 3 s.c.R.


A          JIKLD : 1. The High Court in answering a question under
     section 66 of 1922 Act or section 256 of 1961 Act does not
     exercise original, appellate or revisional jurisdiction but only
     advisory jurisdiction. [866 C; 870 C]

           2. Rendering advice on the question of law referred to the
B    courts has nothing to do with the recovery of tax or granting
     stay in respect of the same. [870 G]

           3. It cannot be said that the High Court has inherent power
     or incidental power in the matter of a reference pending before
     it to grant stay of realisation or to grant an injunction. That
     must remain within the jurisdiction of the appellate authority
c    and pendency of a reference does not detract from that
     jurisdiction of the Appellate Authority. The High Court was,
     therefore. in error in the instant case in exercising ita
     jurisdiction by passing an order for stay of realisation under
     section 151 of the Code of Civil Procedure, 1908 in a pending
     reference. The High Court could have exercised its power if the
     Appellate Authority had not properly exercised its jurisdiction,
D    not in reference jurisdiction but by virtue of its jurisdiction
     under Art. 226 or Article 227 of the Constitution of Indis in
     appropriate cases. But that was not so in the inatant case.
     [870 li - 871 BJ

           Sridhar v. Commfeeioaer of Wealth Tax, 153 l.T.R. 543, at
E    54 7; Dwarka Prasad Baja v. Cccaieei.oner of IDc.- Tax, West
     BeDgal-I, 126 I.T.R. 219, approved.

           Polisetti Narayena ll8o v. "'-1 uioaer of IJK:me Tax,
     Hyderabad, 29 l.T.R. 222, over-ruled.

F          4. In answering questions or disposing of references either
     under section 66 of 1922 Act or section 256 of 1961 Act, the liigh
     Courts do not exercise any jurisdiction conferred upon them by
     the Code of Civil Procedure or the Charters or by the Acts
     establishing the respective High Courts. In respect of certain
     matters jurisdictions exercised by the High Court muat be kept
G    separate from the concept of inherent powers or incidental powers
     in exercising jurisdiction under section 66 of 1922 Act or
     section 256 of 1961 Act. Section 66 of Income-tax Act of 1961 ia
     a special jurisdiction of a limited nature conferred not by the
     Code of Civil Procedure or by the Charters or by the special
     Acts constituting such High Courts but by the special provisions
II   of Income-Tax Act 1922 or 1961 for the limited purpose of
     obtaining lligh Court's opinion on questions of law. ln giving
                       c.r.T. v. llANSI DHAR                       853


that opinion properly if any question of incidental or ancillary         A
power arises such as giving an opportunity or restoring a
reference dismissed without hesring or giving some additional
time to file paper book, such powers inhered to the jurisdiction
conferred upon it. But such incidental powers can not be so
construed as to confer the power of stay of recovery of taxes
pending a reference which lie in the domain of an appellate              B
authority. The concept of granting stay in a reference ex debito
justitiae therefore, does not arise. That concept might""ilrise in
case of the Appellate Authority exercising its power to • grant
stay where there is no express provision. Ex debito justitiae is
to do justice between the parties. (870 C-F-i-
                                                                         c
      Tata Iron & Steel eo. Ltd. v. Qdef Revenue Authority of
Bombay, 1923 Privy Council • 50 Indian Appeals 212; ""'"71sai.ooer
v. .Bombay Trust Corporation, 1936 A.I.R. Privy Council = 63
Indian Appeals 408; llulaa Qumd Boid v. Kemalanimc! Singh, (1906)
I.L.R. 33, Cal. 927; (;oonlssiooer of lDcome Tax llollhay v. Sclndla
Steam lisv1gstion Co. Ltd., 42 I.T.R. 589; C.P. Sarathy !liM!aliar       D
v. Cmmissioner of lncollle Tax, ADdhra Pradesh, 62 I.T.R. 576;
Jatsshaukar Dayar.,.. v. Cornrlssi.ooer of lncllE Tax, 101 .I.T.R.
343, referred.

      lDcome Tax Officer, Cmmaoore v. H.K.     llohmmed   Klmhi,    7l
I.T.R. 815, explained.                                                   E

      s. In an appropriate case, if the assessee feels that a
stay of recovery pending disposal of the reference is necessary
or is in the interest of justice, then the assessee is entitled
to apply before the Appellate Authority to grant a stay until
disposal of reference by the High Court or until such time as the
Appellate Authority thought fit. But. in case the Appellate              F
Authority acted without jurisdiction or in excess jurisdiction or
in improper exercise of the jurisdiction, then the decision of
such Appellate Authority can be corrected by the High Court by
issuing appropriate writs under Articles 226 and 227 of the
Constitution. [869 H - 870 B)
                                                                         G
      6. Prior to 1918, there was no provision for reference to
the High Court at all in respect of any decision by the revenue
authorities. In Act VII of 1918, section 51 contained this
provision under which the Chief Revenue Authority was empoWE~ed
to refer a case to the High Court when any question aro~e
regarding the interpretation of any of the provisions of the Act
or of any rule made thereunder. The said authority could do so           H
    854               SUPREME GOURT REPORTS     [i9i5] SUPP. 3 s.c.R.
A

    (i) either suo m:itu (ii) on reference from a subordinate autho-
    rity or (iii) on the application of the assessee. This is no part
    of the Civil or appellate or revisional jurisdiction of the High
    Court. [858 G-:11)
B
          7 • Section 66 of the Act of 1922 provides that within
    certain time either at the instance of the assessee or at the
                                                    • a question of
    instance of the Revenue, the Tribuual. might refer
    law for the opinion of the High court, It also empowered the
    assessee to make an application to the High Court in case' the
    Tribunal refused to refer the question after drawing up a
C   statement of case. Section 66A provides for reference to be heard
    by Benches of High Courts and appeals in certain cases to this
    Court. Under Section 256 of 1961 Act, the provision of reference
    to the High Court is the same as under section 66 of 1922 Act.
    (859 B, F, 860 CJ

          8. Once certain words in an Act of Parliament bad received
D   a judicial construction in one of the superior courts, and the
    legislature repeated these without any alteration in a subsequent
    statute, the legislature must be taken to have used them
    according to the meaning which a court of competent jurisdiction
    had given to them. This rule of interpretation affords only a
    valuable presumption as to the meaning of the language employed
E   in a statute. Where a judicial interpretation is well settled and
    well recognised the rule ought doubtless, to receive effect, but
    must be a question of circumstances whether Parliament was to be
    presumed to have tacitly given statutory authority to a single
    judgment of a competent court so as to render that judgment,
    however, obviously wrong nnexamlnsble by the Highest Court.
F   (868 E-G]

          Barra1i v. Aberdeen Stea TrawliDg and F1sb:lDg Co. Ltd.,
    1933 A.E.R. a 1933 A.C. 402, referred to.

          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1668 (NT)
G   of 1978.

          From the Judgment and Order dated 15. 7 .1977 of the Delhi
    High Court in I.T.R. Nos. 82 & 83 of 1973.

                                   WITH
H
          Civil Appeal Nos. 77 &78 (NT) of 1974

          From the judgment and Order dated 30.7.1973 of the Patna
    High.Court in Tax Appeals Cases Nos. 16 & 17 of 1972.
          c.r.T. v. BANSI DHAR [SABYASACHI MUKHARJI, J.]        855

                                                                        A
      s.c. Manchanda, and Miss A. Subhashini for    the Appellant
in C.A. No. 1668 of 1978.

      S.T. Desai, Barish Salve, Mrs. A.K. Verma, Miss Lira
Goswami and J.B. Dadachandji for the Respondent in C.A. No. 1668
of 1978.                                                                B

      B.Jl. AhuJa and Miss A. Subhashini for the Appellant in C.A.
No. 77 & 78 of 1974.         ·

      Neino for the Respondents in C.A. No. 77 & 78 of 1974.
                                                                        c
      The Judgment of the Court was delivered by

       SABYASACHI MllKllARJI, J. The main question involved in these
appeals, is the question of jurisdiction of the High Court, to
grant stay or pass interim orders in pending references under
""c.tion 66 of the Indian Income-Tax Act, 1922 (hereinafter called     . D
 the Act of 1922) and section 256 of the Income Tax Act, 1961
 (hereinafter called the 'Act of 1961'). These appeals are by
special leave from the judgments of the High Courts. The main
judgment is the judgment of the Delhi High Court in the case of
L. Bansi Dhar and Sons v. CommissioDer of Income-Tax, New Delhi
(C.A. No. 1668/78). The question arose in applications filed by         E
the assessee under section 151 of CPC in two Income-tax
References Nos. 8l and 83 of 1973 relating to the assessment
years 196cr61 and 1962-63 respectively praying that the High
Court might be pleased to grant an order of inJuction for
restraining the Commissioner of Income-tax ll), Central Revenue
Building, and/or his subordinate officers including the
Income-tax Officer, Company Circle (III), from enforcing and/or          F
realising the demand raised in the aforesaid assessment years
196cr61 and 1962-63, and from taking any steps for the recovery
thereof till the disposal of the references pending in the High
Court.

      The asses see is a Hindu undivided family. The Karta of the        G
HUF is Lala Bansi Dhar. His father, Lala Murlidhar, died in the
year 1949 in an air crash. On the.death of the father, a sum of
Rs.2,49,874 was received by Lala Bansi Dhar from the insurance
company on account of an aceident insurance policy covering the
risk of the life of the deceased. The. income derived from the
said amount was treated as the income of'· Lala Bansi Dhar and was
assessed in his personal assessment •. Lala Bansi Dhar was married       H
on 3rd February, 1953, and a son, Tilak Klimar, was born on 3rd
         856               SUPRF.HE COURT REPORTS      (1985] SUPP. 3 s.c.a.

A        February, 1956. The illCOllle from the ioaurance amount continued to
         be assessed in the personal assessment of Lala Banai Dhar even
         after formation of the llllF on his marri"8e and the birth of a
         son, and continued to be so assessed till the assessment year
         1959-60.

B                 In the assessment year 1960-61 for the first time, the
         Income-tax Officer treated the income from the ioaurance amount
         as that on the llllF and assessed the income in the bands of the
         HUF. On appeal by the assessee, HUF, the Appellate Assistant
         Comnissioner set aside the assessment holding that the income was
         the personal income of Lala Baoai Dhar and not of the llllF.
         Against that order, the revenue preferred an appeal to the
c        Income-tax Appellate Tribuoal. A similar appeal was also
         preferred to the Tribunal by the revenue for the assessment year
         1962-63. Both the appeals were disposed of by the Tribunal by a
         cOlllllOD order on 23rd November, 1970 whereby it was held that the
         income in question was that of the HUF and the liable to be
         assessed as such. Then at the instance of assessee-tiUF, the
         Tribunal referred to the High Court the following question under
D        section 256(1) of the Income-tax Act, 1961, as arising out of the
         said COlllllOD order nsmely :

               "Whether, on the facts and in the circumstances of the
         case, the amount of Rs.2,49,874 received by L. Bansi Dhar from
         the insurance company on ""count of the accident insurance policy
E        covering the risk to the life of his father, L. Murlidhsr, is
         correctly treated as ancestral property of the H.U.F. of which L.
         Banai Dhar is the karts?"

                Two references were registered as Income--tax References
         Nos. 82 and 83 of 1973 1 and it was in the said references, that
    F    the applicatio11s for injunction and stay had been filed by the
         assessee-llUF under section 151 of the Code of Civil Procedure
         invoking· the inherent jurisdiction of the High Court.

               It was stated in the application for stay that for the
         subsequent assessment years 1963-64 and 1964-65, similar appeals
    G    had been filed by the revenue before the Tribunal and the same
         were pending, that for the assessment years 1965-66 to 1969-70,
         however the orders of the Appellate Assistant Colllaissioner were
         against the assesoee, and the assessee-llUF had preferred appe.U.s
         to the Tribunal which were also pending, that in the said appeals
         preferred by the assessee-HUF on application by the asseasee, the
    II   Tribun&l bad granted stay of the recovery of the tax demaaded on
          C.I.T. v. BANSI DHAR [SAllYASACllI MlJKllARJI, J.]   857

                                                                      A
 the condition that the assessee should furnish adequate security
 to the satisfaction of the Income-tax Officer, that since the
 matter relating to the two assessment years (196o-61 and 1962-63)
 was before the High Court in references under section 66(1) of
 the Indian Income-tax Act, 1922/section 256(1) of the Income-tax
 Act, 1961, sllnilar order of stay should be granted by the High
 Court and prejudice would be caused to the assessee if in spite      B
 of full tax being paid by its karts in Ilia personal assessment,
 the HUF is asked to pay tax over again in respect of the same
 income. A counter-affidavit was filed in which a preliminary
 objection was raised that under the provisions of the Income-tax
 Act, the High Court exercised only an advisory or consultative
 jurisdiction and consequently had no jurisdiction or power to        c
 grant stay of the recovery of tax as prayed for in the
 application, and that, in fact, the grant of stay by the High
•Court al!d this Court had been prohibited by the two Acts of 1922
 and 1961. On merits, however, it was admitted that tax had been
 patd by Lala llansi Dhar in his personal capacity on the basis of
  the same income which had been returned by him in his il!dividual   D
 income-tax return, yet, it was submitted that as a result of the
 impugned order of the Appellate Tribunal, the income from the
 insurance amount was assessable in the hands of the HUF and the
 HUF was obliged to pay the tax unless and '1ntil the question of
 law referred to the High Court was answered in favour of the
 assessee and that the assessee would not be prejudiced if no stay    E
 was granted and the tax was realised, as it would get a refund of
 the tax paid in case the references were answered in its favour.

      The question for determination which fell for consideration
before the High Court and which requires to be considered in
these appeals by this Court, is, whether the court, in a
reference to it either under section 66(1) of the Act of 1922, or     F
under section 256(1) of the Act of 1961, has jurisdiction or
power to pass any order granting stay of recovery of the taxes
pending the disposal of the refernces.

      The High Court on consideration of certain matters,
rejected the preliminary objection aiid granted stay of the           G
realisation of taxes. The High Court found that, in the facts and
circwostsnces of the case, there s~ould be stay on terms and the
High Court granted that stay on condition that the assessee
should furnish adequate security for the said amount to the
satisfaction of the concerned Income-tax Officer within six weeks
from the date of the order of the High Court. The other two
matters being Civil Appeals Nos. 77 and 78 of 1974 arise o\it of      H
    858               SUPREME COURT REPORTS     [1985] SUPP. 3 s.c.R.

A   the decision of the Patna High Court where stay was granted by
    the Patna High Court in respect of realisation of tax pending
    disposal of the income-tax references.

          The revenue has come up to this Court challenging the
    validity of the decision of the High Courts that pending
B   references in income-tax matters to the Courts either under
    section 66 of the Act of the 1922 or under section 256 of the Act
    of 1961, the High Courts or the Supreme Court, as the case may
    be, have inherent powers or jurisdiction to pass any order
    granting stay or granting injunction staying the realisation of
    the amount pending disposal of the references. Incidentally, it
    may be pointed out that at the bar at the time of hearing of the
C   appeals, it was stated by counsel on behalf of the assessee that
    in the decision of the Delhi High Court, ultimately           the
    reference has been answered in favour of the assessee. So far as
    the assessee in that matter is concerned the question has become
    academic.

          The High Court of Delhi in its judgment had discussed all
D   the relevant authorities. The references were pending Under
    section 66(1) of the Act of 1922 for the first two years, in
    respect of similar appeals for the assessment years 1965-66 and
    1969-70 the references were pending under section 256(1) of the
    Act of 1961. The scheme of section 66(1) of the Act of 1922 as
    well as section 256(1) of the Act of 1961 are well-known.
E
          The High Court noted and as is the case that the Act of
    1922 did not and the Act of 1961 does not contain any express
    provision empowering the High Court or the Supreme Court to grant
    stay of recovery of tax including pending disposal of the
    reference before it or pass any order in that respect of the
F   same. Therefore, the assessee sought to invoke the inherent
    jurisdiction or the ancillary powers of the courts.

          Prior to 1918, there was no provision for reference to the
    High Court at all in respect of any decision by the revenue
    authorities. In Act VII of 1918, section 51 contained this
G   provision under which the Chief revenue authority was empowered
    to refer a case to the High Court when any question arose
    regarding the interpretation of any of the provisions of the Act
    or of any rule made thereunder. The said authority could do so
    (i) either suo motu or (ii) on reference from a subordinate
    authority or (iii) on the application of the assessee. This is no
H   part of the civil or appellate authority or revisional
    jurisdiction of the High Court.
         c.I.T. v. BANSI DHAR [SABYASACHI MUKHARJI, J.]       859

                                                                     A
       Section 66 of the Act of 1922 contains similar provisions
like section 149 of the English Income-Tax Act, 1918. Section 66
of the Act of 1922 provides that within certain time either at
the instance of the assessee or at the instance of the revenue,
the Tribunal might refer a question of law for the opinion of the
High' Court. It also empowered the assessee to make an application
to the High Court in case the Tribunal refused to refer the          B
question after drawing up .a statement of case. It is well-settled
that the fact found by the Tribunal were to be accepted by the
High Court and in case the High Court found that the facts found
by the Tribunal were not sufficient, the High Court might under
sub-section (4) of section 66 require the Tribunal to make such
additions thereto or alteration therein as the High Court might      c
direct in that behalf. The High Court upon hearing of any such
case should decJ.de the question of law raised thereby and deliver
its judgment thereon containing the grounds on which such
decision is founded and shall send a copy of such judgment under .
the seal of the Court and the signature of the Registrar to the
                                                                     D
Appellate Tribunal. Sub-section (7) of section 66 provides that
notwithstanding that a reference is made under the section to the
High Court, "income tax shall be payable in accordance with the
assessment made in the case". It is provided that if the amount
of an assessment is reduced as a result of such reference, the
amount over-paid shall be refunded with such interest as the
                                                                     E
Commissioner _may allow unless the High Court, on intimation given
by the Commis'Sioner within thirty days of the receipt of the
result of such reference that he intends to ask for leave to
appeal to the Supreme Court, or to an authority authorising the
Commissioner to postpone payment of such refund until the
disposal of the appeal to the Supreme Court.

      Section 66A provides for reference to be heard by Benches      F
of High Courts and appeals in certain cases to this Court.

       The provisions of Code of Civil Procedure relating to
·appeals to the Supreme Court as far as might apply in case of
appeals under the section in the like manner as in the case of
appeals by the High court provided that nothing in sub-section       G
(3) shall be deemed to have effect on sub-section (5) or
sub-section (7) of section 66. Sub-section (4) of section 66A
provides that where the judgment of the High Court is varied or
reversed in appeal under the section, effect shall be given to
the order of the Supreme Court in the manner provided in
sub-section (5) and (7) of section 66 in the case of a judgment
                                                                     H
of the High Court.
    860               SUPREME COURT REPORTS     [1985] SUPP. 3 8.C.R.

A
          After the High Court and in cases of appeals to the Supreme
    Court, the courts answer the question in any manner or give
    certain opinion. The qpellate tribunals would dispose of the
    appeals in accordance with the opinions expressed or answers
    given by the Hign Courts or the Supreme Court. Therefore under
    the scheme, the appeal is kept pending before the Tribunal and
B
    the appellate jurisdiction is retained by the Tribunal, but the
    High Court exercises an advisory or-consultative jurisdiction.

          Under section 256 of 1961 Act, the provision of reference
    to the High Court is the same as under section 66 of 1922 Act.
    The slight differences between section 256 of 1961 Act and
    section 66(1) and (2) of 1922 Act have been noted' in Kanga &
c   Palkivala's Income Tax - 7th F.dn. - Vol I, p.1146. for the
    present purpose it is not necessary to set these out in detail.
    There is provision for reference to the Supreme Court under
    section 257 of 1961 Act. By sections 261 and 262, there are
    provisions for appeal to Supreme Court and hearing before Supreme
    Court from the decision of the references in the High Courts.
    Section 265 enjoins that notwithstanding that a reference has
D
    been made to the High Court or the Supreme Court or an appeal has
    been preferred to the Supreme Court, tax shall be payable in
    accordance with the assessment made in the case. The scheme of
    1961 Act so far as the scheme of reference to the High Court on a
    question of law is concerned is the same as that of 1922 Act.
    When a question of law arises, the Tribunal can and in certain
E
    circumstances must seek at the instance of the assessee or in its
    own motion or at the instance of the revenue the opinion of the
    High Court on such a questions. The jurisdiction exercised by the
    High Courts is purely advisory, it is neither of a Civil Court
    exercising original, nor of any appellate or revisional jurisdic-
    tion. Therefore, the powers and jurisdiction of the High Courts
F
    and in certain cases of the Supreme Court, are those which are
    expressed and conferred upon them and also those which inher in
    the exercise of that jurisdiction or are ancillary or those which
    sub-serve the exercise of that function and jurisdiction of
    giving advice. The appeal is kept pending before the Appellate
    Tribunal.
G
          In Tata Iron & Steel Co. Ltd. v. Chief Revenue Authority of
    Bombay, 1923 Privy Council = 50 Indian Appeals 212, the Judicial
    Committee had to consider the question whether the function of
    the High Court under these provisions was advisory or not. The
    Judicial Committee decided that such advice was not judgment
H
    within the meaning of clause 39 of the Letter Patent of the High
          C.I.T. V• BANSI DHAR [SABYASACHI MUKHARJI, J.]       861

                                                                      A
Court of Bombay• The use of the expression 'determination' was
not decisive as to whether the decision was merely advisory or
not. The decision or order made by the court under section 51 was
merely advisory. This view was re-affirmed in Comnissiooer v.
Bombay Ttust Corporation, 1936 A.I.R. Privy council 269 • 63
Indian Appeals 408. It is for this reason that section 66A of the     B
1922 Act e.xpressly provided for an appeal from a decision of the
High Court under section 66 of the said Act. The High Court noted
that neither 1922 Act nor 1961 Act did contain any express
prov!.sion empowering the High Court or the Supreme Court to grant
stay or recovery of tax pending disposal of the reference before
it. The High Court in the decision under appeal he1d that it had      c
inherent jurisdiction under section 66 of 1922 Act or under
section 256 of 1961 Act to grant stay pending disposal of the
reference. The High Court referred to the several decisions some
of which will have to be noticed here. Thereafter on ~onsider­
ation of the relevant facts, the High Court granted the stay in
the instant case as noted before.                                     D
      Reliance was placed by the High Court on the decision of
the Andhra Pradesh High Court in Polisetti Narayaoa Rao v.
Ca!uisaioner of :eucc--tax, Hyclerebad, 29 I.T.R. 222. The Andhra
Pradesh High Court referred to the decision in the case of llukulll
a.and Boid v. ·Ke!l"l•nand Singh, (1906) I.L.R. 33, Cal, 927, and     E
referred to the observations of Woodroffe, J., where he posed the
question as to whether the power vested in the High Court under
section 151 of the Code of Civil Procedure was wide enough to
apply to a case like the present. lt was noted that the decision
was approved and followed by the Madras High Court in several
cases as was noted at page 226 of 29 I. T.R. It was further
pointed out that article 227 was wide enough to include such          F
power. The judgment of that Court was delivered by llhimssankaram
J. Subba Rao, C.J. of the Andhra Pradesh High Court was a party
to that decision. It msy, however, be pointed out that in .the
facts and circumstances the Court found that the assessee was not
entitled to any relief pending the disposal of the reference. As
pointed out before that reliance had been placed by the Andhra        G
Pradesh High Court on the· decision in Hukum Chand Boid' s case
(supra). It is necessary, therefore, to discuss that decision.
The said case was concerned with the nature of the jurisdiction
and the ambit of powers under section 583 and 546 of the Code of
Civil Procedure 1882 as it stood at the relevant time. The
division bench of the Calcutta riigh Court consisting of Woodroffe
and Mookerj ee JJ. held that under the principle indicated by         H
section 583 of the Code of Civil Procedure a decree for reversal
    862              SUPREME COURT REPORTS      [1985] SUPP. 3 s.c.R.

A   necessarily carried with it the right to restitution of all that
    had t.W.n under the erroneous decree and the Appellate Court
    having seisin of the appeal, had as ancillary to its duty to
    grant restitution, an inherent power in the exercise of which it
    could, notwithstanding that the decree appealed against had been
    executed, call upon the respondent to furnish security for the
B   due performance of any decree which might be made on the appeal.
    After discussing the facts the court held that the Code of Civil
    Procedure bound the courts so far as it went. The Code, was not
    exhaustive and did not affect the previously existing powers
    unless it took these away; in matters with which it did not deal,
    the court could exercise an inherent jurisdiction to do that
    justice between the parties which was warranted under the circum-
C   stances and which the necessities of the case required. There was
    difference of opinion between Woodroffe J, and Mookerjee J, on
    the scope of applicability of section 546 of the Code of Civil
    Procedure. Justice Woodroffe at page 931 of the report observed:-

               "The Court has, therefore, in many cases, where the
               circumstances require it, acted upon the assumption of
D              the possession of an inherent power to act ex debito
               justitiae and to do that real and substantia"l" justice
               for the administration, for which it alone exists."

         Similarly Justice Mookerjee observed at page 941. of the
    report as follows:-
E
               "It may be added that the exercise by Courts, of what
               are called their "inherent powers" or "incidental
               powers" is familiar in other systems of law, and such
               exercise is justified on the ground that it is
               necessary to make its ordinary exercise of
F              jurisdiction effectual, because, "when jurisdiction
               has once attached, it continues necessarily and all
               the powers requisite to give it full and complete
               effect can be exercised, until the end of law shall be
               attained" ,(See Works on Courts and their Jurisdiction
               section 27 and Wells on Jurisdiction of Courts,
G              Chapter XVII)"•

         These observations, however, will have to be understood in
    the context in which the same were made. If there was
    jurisdiction to do certain matter then all powers to make that
    jurisdiction effective must be implied to the authority unless       f

H   expressly prohibited. But in references under 1922 Act as well as
              C.I. T. v. BANS! DHAR [SABYASACHI MUKllARJI, J.]       Std


    1961 Act the courts merely exercise an advisory or consultative         A
    jurisdiction while the appeals are kept pending before the
    tribunal, therefore, nothing should be implied as distracting
    from the jurisdiction of the tribunals. Power to grant stay is
    incidental and ancillary to the appellate jurisdiction. What was
    true of the appellate jurisdiction could not be predicated of the
    referential jurisdiction. - See the observations of the majority        B
    judgment of the Delhi High Court in llarula Trading Agency v.
    Commissioner of Sales Tax [1981] 47 S.T.C. p.45, though made in
    the context of different statutory provisions.

          This decision of Andhra Pradesh High Court was noticed by
    this Court in Inc...-tax Officer, Cannaoore v. M.K. llobamDed           c
    1Cunhi 71 I.T.R. 815. That decision requires a little closer
    examination. This Court in that decision was dealing with section
    254 of the Act of 1961 which conferred on the Appellate Tribunal
    powers of the widest amplitude in dealing with appeals before it.
    This Court held that that power granted by implication the power
                                                                            D
    of doing all such acts, or employing such means, as were
    essentially necessary to its execution. The statutory power under
    section 254 carried with it the duty in proper cases to make such
    orders for staying recovery proceedings pending an appeal before
    the Tribunal, as would prevent the appeal, if successful, from
    being rendered nugatory. Section 254 carried with it the
    appellate powers of the Appellate Tribunal. This Court while            E
    interpreting that power referred to the Sutherland's Statutory
    Constructions, third edition, articles 5401 and 5402., in Domat's
    Civil Law (Cushing's edition), Volume l, at page 88, Maxwell on
    Interpretation of Statutes, eleventh edition, and came to the
    conclusion that where the power was given to an authority,
    incidental powers to discharge that authority were implied in the
    grant of that power. This Court noted that the Income-tax               F
    Appellate Tribunal was not a court but exercised judicial powers.
    The Court noted that ·there were certain decisions in which
    difficulties were felt that the Appellate Tribunal did not
    possess the power to stay recovery during the pendency of an
    appeal. Reference was made to a decision of the Andhra Pradesh
    High Court in the case of Vetcha Sreerallalllrthy v. 'Ille Inc...-taX
    Officer, VizianagarBll and Another 30 I. T.R. 252, where Viswanatha
    Sastri, J. observed that there was no confinement of an express
    power of granting a stay of realisation of the tax, nor was there
    any power allowing the tax to be paid in instalments. The learned
    judge observed that neither the Appellate Assistant Commissioner
    nor the Appellate Tribunal was given the power to stay the
•   collection of tax. Therefore, according to the learned judge,
                                                                            H
        864               SUPREME COURT REPORTS      [1985] SUPP. 3 s.c.R.

A
        whether the law should not be made more liberal so as to enable
        an assessee who has preferred an appeal, to obtain from the
        appellate forum, a stay of collection of tax, either in whole or
        in part, on furnishing suitable security, was a matter for the
        legislature to consid~r. Referring to the decision in l'ollisetti
        Barayana Rao v. Comfssiooer of Ioccae-tax (supra), this Court
B
        made an observation to the effect that "the same High Court held
        that stay could be granted by it pending reference of a case by
        the Appellate Tribunal to the High Court. This power the High
        Court had under section 151 of the Civil Procedure Code and under
        article 227 of the Constitution". This passage in our opinion
        cannot be taken as approving the observations of the Andhra
        Pradesh High Court in l'ollisetti Narayaua Hao's case (supra).
c       This Court was dealing with the power of the appellate authority
        i.e. the Appellate Tribunal. Therefore, that would be an entirely
        different question. The appellate authority must have the
         incidental power or inherent power- inherent for the disposal of
        an appeal to grant a stay or not to grant a stay.

             The High Court, in our opinion, as was contended by the
D       revenue in answering a question under section 66 of 1922 Act or
        section 256 of 1961 Act do~s not exercise original, appellate or
        revisional jurisdiction but only advisory jurisdiction. See the
        observations of the judicial cOlllllittee in Tata lroD & Steel Co.
        Ltd. v. Qd.ef lleVeDue Authority, Bombay, (supra). It is only
        consultative, neither original nor appellate.
E
              In New Jehallgir Vakil Milla Ltd. v. Camd.ssioaer of
        be•     tax, llollbay Horth lutch 8lld Saurasbtra 37 I.T.R. 11, this
         Court held that the High Court cannot direct the Tribunal to find
         new facts or raise a new question of law or embark a new line of
         enquiry.
F
              In Coamiasioller of Income-1:ax, Bombay v. Sc1wlfa Steaa Navi-
         gation Co. Ltd. 42 r.T.R. 589, a bench of five judges of this
         Court was of the view that reference jurisdiction or special
         jurisdiction is different from appellate or supervisory jurisdic-
         tion. The jurisdiction of the High Court in a reference under
G        section 66 of 1922 Act was a special one, different from its
         ordinary jurisdiction as a civil court. The High Court hearing a
         reference under that section did not exercise any appellate or
         revisional or supervisory jurisdiction over the Tribunal. It
         acted purely in an advisory capacity on a reference which
         properly came before it under section 66(1) and (2) of 1922 Act.
    H    This Court noted that the High Court gives the Tribunal advice,
             c.1.T. v. BANS! DHAR [SABYASACHI MlJKl!ARJI, J,)     865
                                                                          A
    but u!timately it is for the Tribunal to give effect to thet
    advice. This Court further observed thet it was of the essence of
    such a jurisdiction thet the court shell decide only questions
    which were referred to it arid not any other questions. This Court
    was, however of the view thet the power of the court to issue a
    direction to the Tribunal under section 66(2) of the Act of 1922      B
    was in the nature of a mandamus and it was well settled thet no
    mandamus would be issued unless the applicant had made· a distinct
    demand on the appropriate authorities for the very reliefs which
    he sought to enforce by mandamus and thet had been refused.

         Thie question was again conaidered by this Court in Petlad       C
    Turkey Bed Dye Works Co. Ltd. v. Ccnn•saioner of lllcclDe.Jfax
    Bcmbay North 48 I.T.R. 92. Thie Court observed at page 98 of the
    report thet the jurisdiction of the High Court was confined to
    giving an opinion. It was purely advisory and the High Court hed
    no jurisdiction to direct the Tribunal to take fresh evidence.
                                                                          D
         In c.p.  Sarathy )tv'el1er v. ~eeiooer of locame-'la:,
    Andbra Pradesh 62 1.T.R. 576, this Court noted thet the High
    Court cannot set aside the order of the Tribunal and the High
    Court does not sit in appeal over the.judgment of the Tribunal.
    If the High Court found thet the material facts were not stated
    in the statement of case, or the Tribune! hed not stated its          E
    conclusion on material facts, th~ High Court might call upon the
    Tribunal to submit a supplementary statement of case under
    section 66(4) of 1922 Act. It may be mentioned thet it would be
    incidental to answering the question.

          In the case of Camiesiooer of locame-'la:, Bcmbay City I v.
     Greaves Cotton 8Dd Co. Ltd. 68 1.T.R. 200, this Court noted thet     F
     it was :well settled thet the High Court was not a court of appeal
     under reference under section 66 of 1922 Act or under section 256
     of l96l Act and it was not open to the High Court in such a
     reference to embark upon a re-appraisal of the evidence and the
     facts found by the Tribunal must be accepted by the High Court.
                                                                          G
          A full bench of the Kerala High Court in the case of K.
     Abamad v. Coaaiaaioner of ~. Ieral.a 96 1.T.R. 29, held
     thet the High Court had power to delete under section 256 of 1961
     Act an erroneous sentence in the judgment. The full bench held
     thet the courts were conatituted for the purpose of doing justice
     and should have power that is inherent to the discharge of the
     function and that these must have power akin to correct                  H
     accidental slips. The full beitch therein acted on the principle
     that no act of the court should ever injure a party.

I
            866               SUPREME COURT REPORTS     [1985] SUPP. 3 s.c.R.

        A        A learned single judge of the Bombay High Court in the case
            of Jatashankar Dayaram v. Comrlssiooer of Income-Tax 101 I.T.R.
            343, held that application for a reference under section 256(2)
            of 1961 Act in forma pauperis can be permitted. This would be
            incidental or ancillary to the discharge of the function of
            giving advice conferred under section 66 of 1922 Act.
        B
                 This Court in the case of Jaipur Mineral Developaent
            Syndicate v. Coumissioner of Income-Tax, New Delhi 106 I.T.R. 653
            at 656, held that reference which was dismissed for paper books
            not being filed in time could be restored.

                 It is common ground that jurisdiction conferred upon the
    c       High Court under the Income-Tax Act is neither original nor
            appellate. The juriBdiction which it exercised in dealing with
            the income-tax reference was advisory and is a special
            jurisdiction.

                 It was contended on behalf of the assessee that the High
            Court was a court :.hen it exercised its special jurisdiction and
    D       it was well settled that the High Court while hearing a reference
            under a taxing statute had inherent power to make all such orders
            as it would be necessary to do justice where the circumstances of
            the case so required and for this reliance was placed on the
            observations of this Court in the case of Jaipur Mineral
            Development gyndicate v. Comnissiooer of Income-Tax, New Delhi
    E       (supra). But as has been noticed before the power that was
            exercised was for properly giving advice.

                  The Allahabad High Court in Sridhar v. Coalllissioner of
            Wealth-Tax, 153 I.T.R. 543 at 547, observed that only power that
            High Court could exercise under section 27 of the Wealth-Tax Act,
F           1957 was similar to section 66 of 1922 Act i.e., to give opinion
            about the questions referred to it in an advisory capacity by
            answering the questions in favour of the assessee or the revenue,
            as the case might be. Even while hearing a reference under a
            taxing statute, the High Court has certain inherent powers. But
            the extent and scope of the inherent power which can be exercised
G           by an appellate or revisional court cannot be the extent and
            scope of the inherent power of the High Court while exercising an
            advisory jurisdiction such as is conferred by section 27 of the
            Act. The inherent power which the High Court can exercise while
            hearing a reference under section 27 must be confined to the
            procedure about the hearing of a reference and to passing such
H           orders as are ancillary or incidental to the advice which the

                                                                                I
         C.I.T. v. BANSI DHAR [SABYASACHI MUKHARJI, J.]       867

                                                                    A
High Court proposes to give while answering the questions. While
hearing a reference under section 27, the Allahabad High Court
further held that the High Court did not have the further
inherent power to pass interim orders restraining the orders of
AAC or by the Tribunal being given effect to. It was further held
that what the High Court could not do at the time of passing the
                                                                    B
final order, it could certainly not do as an interim measure in
the purported exercise of" its inherent power.

     It is true that the High Courts sometimes act on the
assumption that it possessed inherent power to act ~ debito
justitiae and to do real and substantial justice for which alone
these existed where the circumstances of the case so required,
                                                                    c
the power related to matters of procedure and not substantive
rights of the parties. See in this connection Hanohar Lal Chopra
v. Kai Bahadur Rao llaja Seth Biralal, [1962] 1 Supp. s.c.R. 450,
where this Court a page 463 of the report referred to section i51
of the Code of Civil Procedure and observed that the section
                                                                    D
itself said that nothing in the Code should be deemed to limit or
otherwise affect the inherent power of the court to make orders
necessary for the ends of justice. This 'inherent power' as was
observed by this Court "had not been conferred on the court. It
was a power inherent in the Court by virtue of its duty to do
justice between the parties before it".
                                                                    E
     Further the Code itself recognised the existance of the
inherent power of the Code, there was no question of implying any
powers outside the limits of the Code. See also Padaa Sen and
Anr. v. The State of Uttar Pradesh, [1961] 1 S.C.R. 884 at 887.
     The special jurisdiction of the High Court under section 256
                                                                    F
does not deprive it of judicial character or its inherent power,
it was submitted. This in our opinion does not solve the qUestion
because the High Court in answering reference indubitably acts in
judicial capacity and must be implied to have powers which are
necessary to discharge the obligations in exercising its juris-
diction of giving advice conferred by the special provisions of
                                                                    G
the statute. It was further submitted that the extent and scope
of that inherent power could not be confined to a straight
jacket. It took within its ambit the power to grant stay of
proceedings before the court as it deemed     necessary to do for
the ends of justice. The High Court could exercise such power to
grant stay, it was submitted where the legislature had not denied
or excluded the same in unmistakable terms. But this was not        H
 clear because of the language. It was stated that pendency of a
     868               SUPREME COURT REPORTS     [1985] SUPP. 3 s.c.R.

A
     reference would not stay the realisation, indicates that refe-
     rence has nothing to do with the stay of realisation. The reali-
     sation of non-realisation of tax is part of the appellate juris-
     diction of the Tribunal• It was, however, submitted that the
     inherent power of the High Court and also of the Supreme Court
B    hsd not been ex:luded by the general provisibn in section 265 of
     1961 Act which stated that notwithstanding that a reference has
     been made to the High Court or the Supreme Court or an appeal has
     been preferred to the Supreme Court, tax shall be payable in
     accordance with the assessment made. This section, it was submit-
     ted, did not impose any embargo on the inherent power. It was
     submitted that section 265 of 1961 Act, as regards reference made
c    to the High Court, is in pari materia with section 66(7) which
     also related to reference to the High Court. Section 66(7) was
     interpreted by the Andhra Pradesh High Court in Pollisetti
     liarayana Rao v. ec.m.esioner of IncoE-Tu (supra). It was
     submitted that legislature by adopting the identical language in
     1961 Act OllSt be regarded as having accepted it in section 265 of
     1961 Act. It was submitted that while in re-enacting similar
lJ   provisions of section 66(7), in section 265 the legislature 1lllSt
     be regarded as intending the same meaning to the pari materia
     expression in the 1961 Act. For this reliance was placed on the
     observationa of House of Lords in the Case of Barras v. Aberdeen
     Steaa Trawling and Fishing Co., I.bl. 19'33 A.E.R,
                                                      g  1933 A.C. 402,
     where it was held that once certain words in an Act of Parliament
E    had received a judicial construction in one of the superior
     courts, and the legislature repeated these without any alteration
     in a subsequent statute, the legislature llllSt be taken to have
     used them according to the meaning which a court of competent
     jurisdiction hsd given to them. Lord Macmillan however observed
     that this rule of interpretation afforded only a valuable
F    presumption as to the meaning of the language employed in a
     statute. Where a judicial interpretation is well settled and well
     recognised the rule ought, doubtless, to receive effect, but must
     be a question of circumstances whether Parliament was to be
     presumed to have tacitly given statutory authority to a single
     judgment of a competent court so as to render that judgi:nent,
G    however, obviously wrong, unexaminable by the highest court.

           Therefore, in this case only solitary decision of the Andhra
     Pradesh High Court which was not in all subsequent cases followed
     and which in a way was contrary to several decisions of the other
     High Courts as well as this Court cannot be said to have received
H    parliamentary acceptance. The attention of the Andhra Pradesh
     High Court was not drawn to the decision of this Court in Seth
          C.I. T. V• BANS! DHAR [SABYASACHI Mm<llARJI, J.]        869
                                                                         A
Pxeaclwnd Satr811daa Vo State of B1har 19 I.T.R. 108, where deal-
ing with the nature of the jurisdiction of the Courts in refe-
rence matters under Sales Tax Act this Court observed that the
High Court acquired jurisdiction to deal with the case by virtue
of an express provision of the Bihar Sales T8l< Act. Jurisdiction
was only consultative neither original nor appellate.                    B

      The Calcutta High Court in the case of lllfl1rka Praslid Baja Vo
Comnissioner of Iocome-Tax, West Bengal-I 126 r •. T.R. 219,
observed that in exercising its jurisdiction under section 256 of
the Income-Tax Act, 1961, the High Court did not act as a court
of appeal, as the Income-tax Appellate Tribunal does under               c
section 254 of the Act. The High Court, in dl.sposing of the
reference, could only answer the questions actually referred and
could not raise any question by itself. The findings of fact by
the Tribunal were final so far as the High Court was concerned
and only on limited grounds such findings of fact could be
challenged. After the judgment of the High Court is delivered,           D
the Tribunal has to pass necessary orders to dispose of the case
in conformity with the judgment under section 260 of the Act. The
High Court exercised a very limited jurisdiction. It did not
dispose of the entire matter but its decision was confined only
 to the questions of law as arise from the order of the Tribunal.
Therefore, it could not be said that the High Court exercised its        E
general jurisdiction under article 227 of the CoMtitution in
dealing with a reference. If the High Court could in such case
exercise its powers under equity jurisdiction and grant a tempo-
 rary injunction or a stay it would have to ascertain and to go
 into facts for which the Income-Tax Act, l 9gl did not make any
 provision. Moreover, issuance of orders permitting collection or
 recovery of tax or staying such collection or recovery if made          F
 under exercise of inherent power would result in extension of the
 jurisdiction of the High Court under section 256 of the Act of
 1961. The Calcutta High Court, further, was of the view that a
 court could not vest itself with such additional jurisdiction by
 invoking its inherent powers. Hence, the Court, in seisin of a
 reference under the I.T. Act could not issue an order of                G
 temporary injunction, according to the Calcutta High Court, or
 stay of proceedings which was an injunction in an indirect manner
 in respect of recovery of taxes.

     In an appropriate case, if the a8sessee feels that a stay of
recovery pending disposal of the reference is necessary or is in
                                                                         H
the interest of justice, then the assessee is entitled to apply
before the appellate authority to grant a stay until disposal
     870               SUPREME COURT REPORTS      (1985) SUPP, 3 S,C,R.
 A
     of reference by the High Court or until such time as the
     appellate authority thought fit. But in case the appellate autho-
     ~ity acted without jurisdiction or in excess jurisdiction or in
     improper exercise of the jurisdiction, then decision of such
     appellate authority can be corrected by the High Courts by
 B
     issuing appropriate writs under article 226 and 227 of the
     Constitution.

          It has to be borne in mind that in answering questions or
     disposing of references either under section 66 of 1922 Act or
     section 256 of 1961 Act, the High Courts do not exercise any
,c   jurisdiction conferred upon them by the Code of Civil Procedure
     or the Charters or by the Acts establishing respective High
     Courts. In respect of certain matters jurisdictions exercised by
     the High Court, !IllSt be kept separate from the concept of
     inherent powers or incidental powers in exercising jurisdiction
     under section 66 of 1922 Act or 256 of 1961 Act. Section 66 of
     Income-Tax Act of 1922 or section 256 of Income-Tax Act of 1961
     is a special jurisdiction of a limited nature conferred not by
D
     the Code of Civil Procedure or by the Charters or by the special
     Acts constituting such High Courts but by the special provisions
     of lncoms-Tax Act 1922 ~r 1961 for limited purpose of obtaining
     High Court's opinion on questions of law. In· giving that opinion
     properly if any question of incidental or ancillary power arises
     such as giving an opportunity or restoring a reference dismissed
E
     without hearing or giving some additional time to file paper
     book, such powers inhered to the jurisdiction conferred upon it.
     But such incidental powers can not be so construed as to confer
     the power of stay of recovery of taxes pending a reference which
     lie in the domain of an appellate authority. Therefore, the
     concept of granting stay in a reference ~ debito justitiae does
F
     not arise. That concept might arise in case of the appellate
     authority exercising its power to grant stay where there is no
     express provision. ~ debito justitiae is to do justice between
     the parties.

          Rendering advice on the question of law referred to the
G
     courts has nothing to do with the recovery of tax or granting
     stay in respect of the same.

          Therefore, in our opinion it cannot be said that the High
     Court had inherent power or incidental power in the matter of a
     reference pending before it to grant stay of realisation or to
I!
     grant injunction. That must remain within the 'jurisdiction of the
     appellate authority and pendency of a reference does not detract
         c.1.T. v. BANSI DHAR [SABYASACHI MUKHARJI, J.]      871


from that jurisdiction of the appellate authority. In our           A
opinion, therefore, the High Court was in error in exercising its
jurisdiction by passing an order for stay of realisation under
section 151 of the Code of Civil Procedure in a pending refe-
rence, The High Court could have exercised its power if the
appellate authority had not properly exercised its jurisdiction,
not in reference jurisdiction but by virtue of its jurisdiction     B
under article 226 or article 227 in appropriate cases. But that
was not the case here.

     ln that view of the matter, we are in respectful agreement
with the views expressed by the Allahabad High Court in Sridhar
v. CallDi.ssiooer of Wealth-Tax (supra) and the views of the        c
Calcutta High Court in IMIBa Prasad Baja v. ec-issioner of
Income-Tax, West lleogal.-I (supra) and .we are unable to sustain
the views expressed by Andhra Pradesh High court in l'Olisetti
Harayana Bao v. Conmlssioner of Income-Tax, Hyderabad (supra).
The appeals are accordingly allowed. The judgment and order of
the High Court are set aside. But in the facts and circumstances    D
of the case, p rties are directed to pay and bear their own
                0



costs.




                                                 Appeals allowed.