1. In this reference the assessee is a registered firm consisting of five partners doing business in Mattancherry. In the assessment for 1951-52 the assessee had claimed to have paid Rs. 3,500/- as bonus to one Porinchu, an employee, and a similar sum to Gopala Menon, another employee. The firm therefore prayed the aforesaid amounts to be deducted when computing the assessable income for the year. In the assessment for 1952-53 Rs. 6000/- was claimed to have been paid to the same two employees as bonus, and this amount was asked to be allowed as expenses when computing the assessable income. In the assessment for 1953-54 Rs. 7000/- was claimed to have been paid to the same employees as bonus, which was also asked to be deducted as expenses when computing the income. In the assessment for 1954-55 Rs. 8000/- was claimed to have been paid as bonus to the same persons and was asked to be allowed as expenses. The assessing officer disallowed the claims for 1951-52, 1952-53 and for 1953-54, and the assessee preferred separate appeals before the appellate authority, who by his consolidated order of March 1955 rejected the claim. So far as the claim of Rs. 8000/- being allowed is concerned it was also disallowed; a separate appeal was preferred but the order was confirmed by the appellate authority. Appeals against the aforesaid two orders were preferred before the Appellate Tribunal. That by order of May 23, 1956, dismissed all the appeals and the relevant extract of the order reads as follows: "A scrutiny of the ledger accounts of the two employees in question show large amounts of remuneration credited to them in various ways. The assessee, therefore, has been unable to show that the various payments claimed to have been made to the two employees in question are genuine at all. The assessee, therefore, has been unable to show that the various payments claimed to have been made to the two employees in question are genuine at all. For these reasons we are not going into the question of the extent to which the payments in question could be said to have been wholly and exclusively laid out for purposes of business." The application under S.66(1) of the Income Tax Act having been rejected by the Tribunal, the assessee filed the applications under S.66(2) of the aforesaid Act in this Court and asked the following two questions to be stated: "(1) Whether on the facts and in the circumstances of the case the amount paid by way of bonus to the two employees is admissible in law under S.10(2) of the Indian Income Tax Act. (2) Whether the Tribunal in the circumstances of the case acted legally and with jurisdiction in finding against the truth of the payment of bonus to the said employees. Whether there is any evidence to support the findings." 2. It is common ground that only the first question had been asked to be referred in the application under S.66(1) of the Income Tax Act, but the learned Judges on August 1, 1957, were satisfied about both the two questions mentioned in the application under S.66(2) to have arisen and accordingly directed the Tribunal to state the case. The reference has now come for hearing, and the preliminary objection taken on behalf of the department is that the direction to refer the second question is beyond the jurisdiction under S.66(2) of the Income Tax Act, as the question had not been asked in application under S.66(1), and therefore the Tribunal cannot be said to have refused thereby enabling this Court to exercise its jurisdiction under S.66(2). It is clear that should the objection be sustained the answer to the first question would be of no assistance to the assessee; for it assumes payments having been made and with the conclusion of no such payments becoming final, any answer to the first question even in assessee's favour can but be academic. Therefore the decision of the objection in the reference is decisive and the Government Pleader rests his argument on Mehta Parikh & Co. Therefore the decision of the objection in the reference is decisive and the Government Pleader rests his argument on Mehta Parikh & Co. v. Commissioner of Income Tax (24 ITR 207) where Chagla C. J. deals with the situation of the High Court having earlier directed a question to be referred under S.66(2), when such a question had not been asked to be so referred under S.66(1). The relevant extract is as follows: "Now, the jurisdiction of the High Court under S.66(2) only arises when on an application being made under sub-s.(1) the Appellate Tribunal refuses to state the case on the ground that no question of law arises. Therefore there must be a refusal by the Tribunal to state the case and it is only when there is such a refusal that the assessee or the Commissioner may apply to this Court and if this Court is not satisfied with the correctness of the decision of the Appellate Tribunal then this Court can require the Tribunal to state the case and to decide it. But we have no jurisdiction to ask the Tribunal to state a case on a particular question of law when the assessee himself has never asked the Tribunal to refer such a question to the High Court........... Now, if this Court has no jurisdiction to require the Tribunal to state a case in matters where no application was made by the assessee under S.66(1) we cannot confer jurisdiction upon ourselves by requiring the Tribunal to state the case. There is no question of our order becoming final. The question is with regard to the jurisdiction of this Court and if the jurisdiction is absent, no order passed by the Court can confer jurisdiction upon it. Therefore in our opinion, it is not open to us to answer the second question which has been raised by the Tribunal at our instance." A Division Bench of this Court had in Vittaldas Moonji v. Commissioner of Income Tax (33 ITR 222 = 1957 KLJ 749 ) refused to direct the Tribunal to state a question that had not been raised before it, and the learned Judges have held that as the second question had not been specified in the petitioner's application to the Appellate Tribunal under S.66(1) of the Indian Income Tax Act, 1922, it did not therefore arise for consideration. The assessee's learned Advocate has pressed upon us the necessity of answering the questions on the ground of a Division Bench of the same Court at the hearing stages of the references under the Income Tax Act not acting as the appellate authority, so as to justify reversals of the decision earlier given on the question. He has further relied on Vadilal Lallubhai v. Commissioner of Income Tax (3 ITR 152) where views contrary to the cases already cited were taken. The learned Advocate has further tried to distinguish the Bombay case on the ground of the question there having been not raised at any stage before the taxing authorities, whereas, in this case the objection was taken in the application though no question was asked to be referred. We are not impressed with the argument, because importance lies not in the question having been not raised at all, but in the failure of its having been asked for in the application under S.66(1) of the Income Tax Act. A Division Bench of this Court has taken the view that S.66(2) only authorises direction of the questions refused under S.66(1) and we see no compelling reasons to differ. The cases relied on by the learned Advocate of the assessee affirmed the rule that a Bench at the hearing stage of a reference is not appellate authority and should not reverse the earlier conclusions of another Bench in the reference, but they do not establish that such earlier decisions confer jurisdiction and compel the court to answer the question not taken in application under S.66(1). The case before us may cause injustice, but the assessee cannot complain, as the refusal to answer is the consequence of his own neglect to take proper steps at the right moment. Therefore we do not answer the first question because any answer concerning the question would be merely academic, and we do not answer the second, because the preliminary objection concerning such a question being directed to be stated is upheld. The second question in other words should not be answered, because the order made earlier concerning it was without jurisdiction. We therefore decline to answer both the questions, and the aforesaid answers be sent to the Department. The assessee need not bear the costs of the reference, as such costs are not pressed.