Head Note :- COMPARATIVE CITATIONS: 1997 (228) ITR 121, 1997 (140) CTR 288, 2000 (113) TAXMAN 436 Judgment :- K. A. THANIKKACHALAM J. T. C. M. P. No. 693 of 1996 is filed by the assessee under section 151 of the Code of Civil Procedure for condoning the delay of 77 days in filing the restoration petition, T. C. M. P. No. 692 of 1996 T. C. M. P. No. 692 of 1996 is also filed under section 151 of the Code of Civil Procedure to set aside the order of dismissal in T. C. No. 1117 of 1984, dated August 8, 1996, and restore the same for rehearing T. C. No. 1117 of 1984 (CIT v. K. T. M. S. Mohamood 1997 (228) ITR 113, 1997 (140) CTR 282, 1997 (92) TAXMAN 169 was disposed of on August 8, 1996. Inasmuch as counsel for the assessee/respondent was not present on the date of hearing, the reference was heard and answered, with the assistance of learned senior standing counsel appearing for the Department and also after perusing the records carefully. In the result the question referred was answered in the negative and in favour of the Department only to the extent of the addition of Rs. 4, 28, 713. It is thereafter the abovesaid two T. C. M. Ps. were filed before this court under section 151, Civil Procedure Code, to condone the delay of 77 days in filing the restoration petition as well as for setting aside the order of dismissal in T. C. No. 1117 of 1984 (CIT v. K. T. M. S. Mohamood 1997 (228) ITR 113, 1997 (140) CTR 282, 1997 (92) TAXMAN 169 , dated August 8, 1996, and to restore the reference for rehearing. These two T. C. M. Ps. were filed by a counsel, who has not entered appearance on behalf of the assessee in T. C. No. 1117 of 1984 (CIT v. K. T. M. S. Mohamood 1997 (228) ITR 113, 1997 (140) CTR 282, 1997 (92) TAXMAN 169 . The petitioner in the abovesaid two T. C. M. Ps. submitted that originally N. C. Ananthachari and N. C. Rangesh, Advocates, were appearing on behalf of the assessee in the tax case. Mr. N. C. Ananthachari left the practice and Mr. N. C. Rangesh went abroad and settled there. The petitioner in the abovesaid two T. C. M. Ps. submitted that originally N. C. Ananthachari and N. C. Rangesh, Advocates, were appearing on behalf of the assessee in the tax case. Mr. N. C. Ananthachari left the practice and Mr. N. C. Rangesh went abroad and settled there. The petitioner/assessee came to know about the result in the tax case through a letter written by an advocate, Mr. K. C. Rajappa, who was engaged in a writ petition filed by the petitioner herein, which advocate was said to be engaged by N. C. Ananthachari and N. C. Rangesh, Advocates. It is thereafter the petitioner moved the Supreme Court with a special leave petition, Special Leave Petition (Civil) No. 20503 of 1996, wherein the Supreme Court upon hearing counsel, passed the following order "Learned counsel for the petitioner states that he will move the High Court for appropriate orders to rehear the reference. He applies for liberty to withdraw the special leave petition. The special leave petition is dismissed as withdrawn." * Thereafter, the petitioner herein approached this court by way of the abovesaid two T. C. M. Ps. stating that the Supreme Court permitted the petitioner herein to move the High Court for appropriate orders to rehear the reference. Therefore, counsel for the petitioner submitted that in view of the permission given by the Supreme Court, this court can condone the delay in filing the petition to set aside the earlier order passed by this court in T. C. No. 1117 of 1984 (CIT v. K. T. M. S. Mohamood 1997 (228) ITR 113, 1997 (140) CTR 282, 1997 (92) TAXMAN 169 and restore the same so as to enable counsel for the petitioner to make his submissions on the merits On the other hand learned senior standing counsel appearing for the Department/respondent herein submitted as under This court is sitting in the matter of reference under section 256 of the Income-tax Act, 1961. Therefore, the petition under section 151, Civil Procedure Code, to set aside the order passed by this court in T. C. No. 1117 of 1984 (CIT v. K. T. M. S. Mohamood 1997 (228) ITR 113, 1997 (140) CTR 282, 1997 (92) TAXMAN 169 is not competent. Therefore, the petition under section 151, Civil Procedure Code, to set aside the order passed by this court in T. C. No. 1117 of 1984 (CIT v. K. T. M. S. Mohamood 1997 (228) ITR 113, 1997 (140) CTR 282, 1997 (92) TAXMAN 169 is not competent. Further it was stated that there is no provision in the Income-tax Act to condone the delay in filing the petition-to set aside the order passed by this court in T. C. No. 1117 of 1984 (CIT v. K. T. M. S. Mohamood 1997 (228) ITR 113, 1997 (140) CTR 282, 1997 (92) TAXMAN 169 . It was further submitted that the Limitation Act also will not be applicable to tax case references. According to learned senior standing counsel, any application before this court should be filed under section 256 of the Income-tax Act. According to learned senior standing counsel, no reasonable cause was shown for the absence of counsel appearing for the petitioner herein on August 8, 1996, when the tax case was taken up for hearing. According to learned senior standing counsel, the tax case appeared in the monthly list relating to the month of July, 1996, and thereafter the case was appearing in the monthly list relating to the month of August, 1996. The tax case was posted for hearing in the list on more than one occasion and since on August 7, 1996, when counsel for the respondent therein/assessee were not present, the matter was posted in the list on August 8, 1996, under the caption "for orders". Learned senior standing counsel further submitted that the assessee was diligent enough to engage a fresh counsel in a writ petition filed by him when the earlier counsel, who were engaged by him, were not in a position to appear in his case. The assessee could have shown the same diligence in the tax case also by engaging another counsel when he came to know that his earlier counsel were not in a position to appear for him. Learned senior standing counsel also submitted that in a tax case there is no question of dismissing the tax case. The result would be either answering the question or returning the question unanswered. Therefore, filing of the petition under section 151 of the Code of Civil Procedure to set aside the order passed by this court in a tax case is not competent. The result would be either answering the question or returning the question unanswered. Therefore, filing of the petition under section 151 of the Code of Civil Procedure to set aside the order passed by this court in a tax case is not competent. Therefore, according to learned senior standing counsel, when this court was exercising its advisory jurisdiction in giving opinion over the question referred to it in a tax case under section 256 of the Income-tax Act, it is not possible to review its earlier order passed in a tax case, answering the question referred to it. It was, therefore, submitted that the petitions filed by the assessee herein are liable to be dismissedWe have heard both learned counsel appearing for the assessee as well as learned senior standing counsel appearing for the Department The fact remains that T. C. No. 1117 of 1984 (CIT v. K. T. M. S. Mohamood 1997 (228) ITR 113, 1997 (140) CTR 282, 1997 (92) TAXMAN 169 was disposed of on August 8, 1996, answering the question referred to this court in the negative and in favour of the Department. The tax case was listed on the board relating to the month of July, 1996. Again the tax case appeared in the monthly list of August, 1996. On August 7, 1996, when the matter reached, counsel for the assessee were not present. Hence, the matter was posted for hearing on the next date, viz., on August 8, 1996. Even on August 8, 1996, counsel for the assessee were not present. The tax case was heard with the assistance of learned senior standing counsel appearing for the Department and after perusing the records carefully, the question was answered by this court According to the assessee, the earlier counsel engaged by him in the tax case were unable to be present in court since the senior counsel left practice and the junior counsel went abroad and settled down there. It remains to be seen that the same assessee in a writ petition filed by him through a counsel, who were appearing in this tax case engaged a fresh counsel for conducting the writ petition. The same diligence should have been shown by the assessee in engaging a fresh counsel for the purpose of conducting the tax case before this court. That was not done in this case. The same diligence should have been shown by the assessee in engaging a fresh counsel for the purpose of conducting the tax case before this court. That was not done in this case. According to the assessee, he came to know about the result of the tax case only through a letter written by a counsel, who was engaged by the earlier counsel in the writ petition. The same counsel could have done the same arrangement for the tax case also. That was also not done in this caseThe Limitation Act will not be applicable to a tax case filed before this court under section 256 of the Income-tax Act. The limitation for filing a tax case petition or a tax case is already stated in the Income-tax Act, 1961 According to the assessee, the Supreme Court permitted him to move this court for appropriate orders to rehear the reference. A perusal of the order passed by the Supreme Court, dated October 28, 1996, in Special Leave Petition (Civil) No. 20503 of 1996 would go to show that learned counsel appearing for the petitioner therein stated before the Supreme Court that he will move the High Court for appropriate orders to rehear the reference. He also sought for liberty to withdraw the special leave petition. Accordingly, the special leave petition was dismissed as withdrawnIn order to support his contention, learned counsel appearing for the assessee relies upon the decision of the Supreme Court in Jaipur Mineral Development Syndicate v. CIT 1977 AIR(SC) 1348, 1977 (106) ITR 653, 1977 (1) SCC 508 , 1977 (2) SCR 460 , 1977 TaxLR 685, wherein the Supreme Court held as under: "A party or its counsel may be prevented from appearing at the hearing of a reference for a variety of reasons. In case such a party shows, subsequent to the order made by the High Court declining to answer the reference, that there was sufficient reason for its non-appearance, the High Court has the inherent power to recall its earlier order and dispose of the reference on merits. There is nothing in any of the provisions of the Indian Income-tax Act, 1922, which either expressly or by necessary implication, stands in the way of the High Court from passing an order for disposal of the reference on the merits. There is nothing in any of the provisions of the Indian Income-tax Act, 1922, which either expressly or by necessary implication, stands in the way of the High Court from passing an order for disposal of the reference on the merits. The High Court should not be loath to exercise the inherent power of recalling an earlier order provided that the party concerned approaches the court with due diligence and shows sufficient cause for its non-appearance on the date of hearing Held also, on the facts, that there was sufficient cause for non-appearance on the date of the hearing as well as non-filing of the paper books within time, and that there was no lack of diligence on the part of the appellant in approaching the High Court for recalling its earlier order." * According to the facts arising in the abovesaid decision, the High Court passed an order declining to answer the reference because the appellant had not put in any appearance and had also not filed the paper book. In a matter where the High Court unanswered the question and returned the reference it is possible to recall such an order and rehear the reference. But in a case where the High Court on the merits answered the question referred to it in the absence of counsel for the assessee, it is not possible to recall the said order, since that would amount to reviewing its earlier decision which is not possible under the provisions of the Income-tax Act, 1961. Even in the abovesaid decision, the Supreme Court pointed out that there is nothing in any of the provisions of the Indian Income-tax Act, 1922, which either expressly or by necessary implication stands in the way of the High Court from passing an order for disposal of the reference on the merits. Further, in the present case, the tax case was filed by the Department and the Department was ready on the date of hearing to argue its case. In such circumstances, this court cannot prevent the Department from arguing its case while counsel for the assessee was not present even though the tax case appeared in the monthly list and was finally posted for orders on August 8, 1996. In such circumstances, this court cannot prevent the Department from arguing its case while counsel for the assessee was not present even though the tax case appeared in the monthly list and was finally posted for orders on August 8, 1996. Therefore, the decision rendered in Jaipur Mineral Development Syndicate v. CIT 1977 AIR(SC) 1348, 1977 (106) ITR 653, 1977 (1) SCC 508 , 1977 (2) SCR 460 , 1977 TaxLR 685 (SC) would render no assistance to the assessee for seeking the relief of recalling of the order passed on August 8, 1996Learned counsel appearing for the assessee also relied upon the decision of the Supreme Court in CIT v. Bansi Dhar and Sons 1986 (24) ELT 193 , 1986 (157) ITR 665, 1986 (50) CTR 250, 1986 (24) TAXMAN 11, 1986 AIR(SC) 421, 1986 (50) CTR(SC) 250, 1986 (1) SCC 523 , 1986 TaxLR 317, wherein the Supreme Court held as under: "It has to be borne in mind that in answering questions or disposing of references either under section 66 of the 1922 Act or section 256 of the 1961 Act, the High 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, jurisdiction exercised by the High Court must be kept separate from the concept of inherent powers or incidental powers in exercising jurisdiction under section 66 of the 1922 Act or section 256 of the 1961 Act. Section 66 of the Indian Income-tax Act of 1922, or section 256 of the Income-tax Act of 1961, is 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 of the Income-tax Acts of 1922 or 1961 for the limited purpose of obtaining the 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 without hearingly or giving some additional time to file the paper book, such powers inhere to the jurisdiction conferred upon it. In giving that opinion properly, if any question of incidental or ancillary power arises such as giving an opportunity or restoring a reference dismissed without hearingly or giving some additional time to file the paper book, such powers inhere to the jurisdiction conferred upon it. But such incidental powers cannot 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 ex debito justitiae does not arise. That concept might arise in the 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." * According to learned counsel appearing for the assessee this decision would support the assessee's case in recalling the order passed in the tax case and rehearing the assessee under incidental or ancillary power conferred upon this court under section 256 of the Income-tax Act, 1961. It is significant to note that even in the abovesaid decision the Supreme Court pointed out that such incidental or ancillary power can be exercised only to restore a reference dismissed without hearing. According to the facts arising in the present case, the tax case was not dismissed, but the question referred to the High Court was answered in the negative and in favour of the Department. Therefore, the question of recalling the order passed by this court in the tax case on the merits does not arise, since such a power can be said to be neither incidental nor ancillary. Therefore, this decision also would not be applicable to the facts arising in the present case Reliance was also placed upon the Full Bench decision of the Kerala High Court in K. Ahamad v. CIT 1974 (96) ITR 29, wherein the Kerala High Court held as under that in the answer to the reference, it was held that, in the circumstances of the case, for the year of assessment 1963-64, the Explanation was applicable, That was all that was meant and said. But, unfortunately, a sentence had crept in due to an accidental slip or omission or carelessness which had given rise to much trouble subsequently. It was not decided that the assessee was liable to be penalised. But, unfortunately, a sentence had crept in due to an accidental slip or omission or carelessness which had given rise to much trouble subsequently. It was not decided that the assessee was liable to be penalised. The court never dealt with the question as to whether, as required by the Explanation to the section, extenuating circumstances existed or whether they were sufficient. In those circumstances, the interpretation placed on the sentence was thoroughly unjustified, and the position had to be clarified. The sentence must disappear from the judgment in the interest of justice for which alone courts have been constituted. There was no law which precluded the court from doing so. If there are accidental errors or omissions, the High Court as a court of review has the jurisdiction to correct those errors and rectify those omissions. The principle is that no act of a court shall even injure a party. " According to the abovesaid decision, if there are incidental errors or omissions, the High Court, as a court of review, has the jurisdiction to correct those errors and rectify those omissions. But, in the present case, no such error or accidental omission is pointed out so as to enable this court to correct the same by reviewing the earlier order passed by this court. Accordingly, this decision also will not support the contention put forward by the assessee in this case Our attention was also drawn to the decision of the Allahabad High Court in Lakshmi Industries and Cold Storage Co. (P.) Ltd., In re 1980 (124) ITR 828, 1981 (5) TAXMAN 87 . According to the facts arising in that decision, the name of counsel appearing for the assessee does not find a place in the cause list. Therefore, the Allahabad High Court came to the conclusion that the decision rendered by the High Court without hearing counsel for the assessee would amount to a nullity for want of notice to the assessee. But that is not the case here. So this decision also will not help the assessee to contend that the order passed by this court in the tax case is liable to be set aside. But that is not the case here. So this decision also will not help the assessee to contend that the order passed by this court in the tax case is liable to be set aside. Thus, considering the facts arising in this case, in the light of the judicial pronouncements cited supra, we hold that the abovesaid two tax civil miscellaneous petitions filed by the assessee under section 151 of the Code of Civil Procedure are not maintainable and, therefore, they are dismissed.