JUDGMENT S.B. Sakrikar, J. 1. The Income-tax Appellate Tribunal, Indore Bench, Indore, stated the case and referred the undernoted question for answer with reference to the order passed by the Appellate Tribunal in ITA No. 13/ Ind of 1984 on the application of the applicant/assessee : "Whether, on the facts and in the circumstances of the case, the unabsorbed depreciation of the firm for the assessment years 1977-78, 1978-79 and 1979-80 at Rs. 88,101, Rs. 96,161 and Rs. 44,594, respectively, is allowable for set-off against the income of the assessment year 1981-82 ?" 2. The facts of the case lie in a narrow compass. The assessee is a registered firm carrying on the business of plying passenger buses. It had unabsorbed depreciation for the assessment year 1977-78, Rs. 88,101 ; assessment year 1978-79, Rs. 96,161 and assessment year 1979-80, Rs. 44,594. For the assessment year 1980-81, there was no unabsorbed depreciation but the assessee had a net loss of Rs. 10,000 after allowing depreciation. In assessment year 1981-82, the assessee returned nil income after adjusting unabsorbed depreciation to the extent of income available at Rs. 98,655. The Income-tax Officer, however, determined the income after allowing the current depreciation only and did not allow the claim of the assessee regarding set off of unabsorbed depreciation of earlier years. The assessee filed an appeal to the Assistant Commissioner of Income-tax, Ujjain Range, Ujjain, registered as Appeal No. UA 66 of 1983-84. The first appellate authority dismissed the appeal of the assessee and upheld the order of the Income-tax Officer. The assessee preferred a second appeal before the Income-tax Appellate Tribunal, Indore Bench, Indore, registered as ITA No. 13/Ind of 1984. This appeal was also dismissed. Aggrieved, the assessee has filed the application under Section 256(1) of the Income-tax Act for referring the following questions of law for reference to this court : "(1) Whether, on facts and in the circumstances of the case, the unabsorbed depreciation of assessment years 1977-78 (Rs. 88,101), 1978-79 (Rs. 96,161) and 1979-80 (Rs. 44,595) and loss of Rs. 10,000 of the assessment year 1980-81 is eligible for set-off against the income for the assessment year 1981-82 ? 88,101), 1978-79 (Rs. 96,161) and 1979-80 (Rs. 44,595) and loss of Rs. 10,000 of the assessment year 1980-81 is eligible for set-off against the income for the assessment year 1981-82 ? (2) Whether, on facts and in the circumstances of the case, the following unabsorbed depreciation allowed to be carried forward in the case of the firm as per the Income-tax Officer's order dated February 16, 1982, is allowable for set-off against the income for the year under reference. __________________________________________________________________ Assessment year Amount Rs. 1977-78 88,101 1978-79 96,161 1979-80 44,594 __________________________________________________________________ Total 2,28,856 __________________________________________________________________ (3) Whether, on the facts and in the circumstances of the case, the unequivocally ascertained unabsorbed depreciation of the appellant firm which are not considered in the assessment of the partners qualify for set-off against the income of the same firm in the subsequent years ? (4) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that benefit of carry forward of unabsorbed depreciation was not available to a registered firm for adjustment against the income of the succeeding year 1. (5) Whether, on the facts and in the circumstances of the case, the ratio of the Madhya Pradesh High Court decision as reported in Kalani Udyog v. ITO [1979] 117 ITR 431 is applicable to the appellant ?" 3. The Tribunal stated the statement of the case and referred only question No. 1 to this court for its opinion as above. 4. None appeared for the applicant/assessee. Shri D.D. Vyas, learned counsel appeared for the Department/NA. He is heard. 5. Shri Vyas, learned counsel, submitted that the assessee at whose instance, reference is made, has chosen to remain absent and has, thus, not enabled the hearing of this reference. Under these circumstances, this court is not under obligation to answer the reference and he accordingly prayed that we should decline to answer the reference, In support of his contention, Shri Vyas placed reliance on Jamunadas v. Commissioner of Sales Tax [1993] 38 MPLJ 462. 6. Under these circumstances, this court is not under obligation to answer the reference and he accordingly prayed that we should decline to answer the reference, In support of his contention, Shri Vyas placed reliance on Jamunadas v. Commissioner of Sales Tax [1993] 38 MPLJ 462. 6. In the case of Jamunadas Kanchand [1993] 38 MPLJ 42 on considering the legal position of the point it is held as under : "For the foregoing reasons, we are of the opinion that if the party at whose instance the reference is made, fails to appear at the hearing or fails in taking steps for preparation of the paper books so as to enable hearing of the reference, this court is not bound to answer the reference. We refuse to answer the reference and also saddle the assessee with the costs of the Department quantified at Rs. 150." 7. The provisions of Section 256(1) of the Income-tax Act and Section 44(1) of the Madhya Pradesh General Sales Tax are applied when the references are made, but the consequence, in default of appearance of the party at whose instance the references are made, remains the same. We accordingly find that the objection raised by Shri Vyas is proper and deserves to be permitted to prevail. 8. We, therefore, accept the contention raised by Shri D.D. Vyas, appearing for the non-applicant and accordingly refuse to answer the reference. The reference is, thus, not answered. There shall be no orders as to costs. The Tribunal be informed accordingly. This reference application, thus, stands disposed of.