At, High Court of Delhi
By, THE HONOURABLE MR. JUSTICE B.N. KIRPAL & THE HONOURABLE MS. JUSTICE SANTHOSH DUGGAL
For the Appearing Parties : R. Santhanam, Sanat Kumar, B. Gupta, R. K. Chaufla, Advocates.
BY THE COURT :
It is stated by the learned counsel for the respondent that on an application under S. 256(1) having been filed, the Tribunal has already decided to refer question of law to this Court. Leaned
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counsel for the petitioner states that notwithstanding the fact that the application under S. 256(1) was filed by the petitioner but in view of the law laid down by the Court in CWT vs., Smt. Illa Dalmia 1987 (168) ITR 306, 1987 (59) CTR 283, 1987 (32) TAXMAN 602, 1987 (59) CTR(Del) 283: 1987 (168) ITR 182 (Del) and CIT vs. K. L. Bhatia 1990 (182) ITR 361, 1990 (84) CTR 152, 1990 (51) TAXMAN 436, 1990 (84) CTR(Del) 152, an application under S. 256 is not maintainable from an order passed under S. 254(2). We cannot agree with the contention that an order passed under S. 254(2) is not amenable to an application under S. 256(1) or (2) of the Act. Sec. 256(1) clearly states that an application can be filed under that section against an order passed under S. 254. In 1990 (182) ITR 361, 1990 (84) CTR 152, 1990 (51) TAXMAN 436, 1990 (84) CTR(Del) 152 the question arose where the order was purported to have been passed by the Tribunal not under the provisions of S. 254 but under some inherent jurisdiction. It is in connection with this that this Court Observed that an application under S. 256 was not maintainable if an order is not passed under S. 254. The case of 1987 (168) ITR 306, 1987 (59) CTR 283, 1987 (32) TAXMAN 602, 1987 (59) CTR(Del) 283 was concerned with the provision of the WT Act of which is not applicable to the present case. The provisions of S. 256 are clear and unambiguous and when an order is passed under S. 254 an application under S. 256 is clearly maintainable.
In view of the fact that alternative remedy has already been availed of by the petitioner and reference has been made, this petition is dismissed on that ground. If all the questions suggested by the petitioner have not been referred, the petitioner can, at the time of finalisation of the reference, request the Tribunal to frame additional questions or reframe the question proposed to be referred and failing that the petitioner can always move an application under s. 256(2). This petition is disposed of