JUDGMENT : A.K. Ganguly, J. - These six miscellaneous cases being Miscellaneous Cases Nos. 1 to 6 of 2004 u/s 151 of the CPC (hereinafter called, "the Code"), were filed by the Revenue in S.J.C. Nos. 211 to 216 of 1971 Commissioner of Income Tax Vs. Biju Patnaik, ) which were disposed of by a Division Bench of this High Court on August 1, 1990. 2. In all the miscellaneous cases identical prayer was made and the said prayer is set out below: It is therefore prayed that this hon'ble court may be pleased to allow this application and be further pleased to direct the Tribunal to conclude the assessment in terms of the order of the apex court and the order of this hon'ble court dated August 1, 1990. Alternatively this hon'ble court may be pleased to issue suitable directions for giving effect to the order of the apex court. Any other order/orders that may deem fit and proper be passed in the facts and circumstances of this case. 3. The facts of the case span over more than four decades and some of the facts may be recounted briefly to appreciate the nature of controversy. 4. In the course of assessment of the late Biju Patnaik for the assessment years 1962-63, 1963-64 and 1964-65, the Assessing Officer came to a finding that the funds invested in Kalinga Foundation Trust (hereinafter referred to as "the Trust") actually belonged to the assessee and the trust's income was added to the income of the assessee. On appeal, the Appellate Assistant Commissioner of Income Tax (the AAC) reversed the finding of the Assessing Officer, inter alia, on the ground that the Assessing Officer reached its findings on the basis of evidence collected behind the back of the assessee. As such direction was given to undertake the exercise of assessment once again after giving the assessee an opportunity to cross-examine the persons on whose statement the previous assessment was made. This was done by the Appellate Assistant Commissioner by his order dated April 1, 1968. 5. However challenging the said order of the Appellate Assistant Commissioner, the appeals were filed before the Income Tax Appellate Tribunal (hereinafter referred to as "the ITAT"). This was done by the Appellate Assistant Commissioner by his order dated April 1, 1968. 5. However challenging the said order of the Appellate Assistant Commissioner, the appeals were filed before the Income Tax Appellate Tribunal (hereinafter referred to as "the ITAT"). In the appeal filed by the assessee it was contended that since the assessment order was found by the Appellate Assistant Commissioner to be vitiated by illegality, the same should have been quashed for good and the contention of the Department was that, the assessment order was valid and should have been confirmed by the Appellate Assistant Commissioner. 6. While deciding the said appeals, the Income Tax Appellate Tribunal reiterated the findings of the Appellate Assistant Commissioner and held that the assessment orders suffered from legal infirmity, inter alia, on the ground that the assessee was not given an opportunity to rebut the statements recorded u/s 131 of the Income Tax Act and also because of the fact that the Assessing Officer failed to consider the entire evidence on record and did not call upon the assessee to furnish explanation on certain points. The Income Tax Appellate Tribunal thus dismissed the appeals of the Department by its order dated November 27,1970. Then on May 17, 1971, the Department filed an application u/s 256(1) of the Income Tax Appellate Tribunal to refer the matter to the High Court but the Department's application was rejected, inter alia, on the ground that no question of law arose out of the order of the Income Tax Appellate Tribunal. 7. Thereafter, the High Court also rejected on April 5, 1974, the Department's application u/s 256(2) of the Act, holding, inter alia, that the finding of the Income Tax Appellate Tribunal was correct and no question of law arose. 8. Then the Department went up in appeal to the Supreme Court from the order of the High Court and the hon'ble Supreme Court allowed the Department's appeal and directed the Income Tax Appellate Tribunal to refer u/s 256(2) of the Act certain questions of law to be heard by the High Court. 9. The questions framed by the hon'ble Supreme Court are as follows ( [1991] 190 ITR 397 ) 1. Whether the findings of the Appellate Tribunal are vitiated in law by reason of it having ignored relevant and admissible evidence and having relied on incorrect facts and misstatement of facts? 2. 9. The questions framed by the hon'ble Supreme Court are as follows ( [1991] 190 ITR 397 ) 1. Whether the findings of the Appellate Tribunal are vitiated in law by reason of it having ignored relevant and admissible evidence and having relied on incorrect facts and misstatement of facts? 2. Whether, on the facts and in the circumstances of the case, the conclusion of the Tribunal that the Kalinga Foundation Trust came into existence in 1947 and that it was distinct from the trust created by the assessee in 1949 logically followed from the materials on record or it was perverse in the sense that no reasonable man could come to it on the said materials? 3. Whether, on the facts and in the circumstances of the case, in arriving at the finding that the Kalinga Foundation Trust had acquired property from donations from the public, the Tribunal erred in law in not giving due consideration to the several matters relevant for determination of the points which had been considered by the Income Tax Officer in the assessment order? 4. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the income from dividend shown in the name of the Kalinga Foundation Trust, the interest on the loans advanced in the name of the Kalinga Foundation Trust and all investments, remittance, receipts and actual payments in the name of Kalinga Foundation Trust did not belong to the assessee and should therefore be deleted from the assessment of the assessee? 5. Whether, on the facts and in the circumstances of the case, there was any evidence in support of the Tribunal's rinding that the assessee had collected donations from the public for the Kalinga Foundation Trust? 6. If the answer to question No. 5 (rearranged by this Court) be in the negative, then whether the Tribunal was right in holding that the amounts donated by the assessee to the said trust were satisfactorily explained and accordingly they were not to be included in the assessment of the assessee? 7. 6. If the answer to question No. 5 (rearranged by this Court) be in the negative, then whether the Tribunal was right in holding that the amounts donated by the assessee to the said trust were satisfactorily explained and accordingly they were not to be included in the assessment of the assessee? 7. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the Revenue authorities were bound to accept the decision of the Supreme Court in S.P. Jain v. Kalinga Tubes Ltd., as to the ownership of 39,000 shares of Kalinga Tubes Ltd. in spite of the materials collected by the Income Tax Officer subsequent to the delivery of the judgment in the said case? 8. If the answer to question No. 7 (rearranged by this Court) be in the negative, then whether the finding of the Tribunal that the persons in whose names the said shares stood were not the benamidars of the assessee was perverse and was arrived at without due consideration of the material considered by the Income Tax Officer in detail of the point? 10. After framing the said questions, the hon'ble Supreme Court directed the Income Tax Appellate Tribunal to send a statement of case for the three assessment years involved in this case within six months from the date of receipt of the order. Pursuant to that, the Tribunal sent the reference to the High Court and the High Court heard the parties in full in the said reference application. The High Court's judgment is reported in Commissioner of Income Tax Vs. Biju Patnaik, . 11. The High Court in its judgment found that the Tribunal did not consider the evidence in its proper perspective, and accordingly the finding of the Appellate Tribunal is vitiated by law. Therefore the Tribunal was to consider the matter once again, and since admittedly the assessee was not given a reasonable opportunity by the Income Tax Officer to give a rebuttal evidence, the same should now be given. It was made clear that this can be effectively done only by the Assessing Officer. Recording this finding the reference application was disposed of leaving it open to the Tribunal to pass a consequential order on the basis of the judgment of the High Court. 12. It was made clear that this can be effectively done only by the Assessing Officer. Recording this finding the reference application was disposed of leaving it open to the Tribunal to pass a consequential order on the basis of the judgment of the High Court. 12. After the judgment of the High Court was delivered on August 1, 1990, the Income Tax Appellate Tribunal passed the following consequential orders: Accordingly, we restore the matter to the file of the Assessing Officer with a direction to pass fresh order after allowing reasonable opportunity of being heard to the assessee on the lines of the direction of the honourable High Court. 13. The Assessing Officer at Bhubaneswar on receipt of the case on transfer sent a notice to the assessee in respect of the aforesaid three assessment years and on receiving the said notice, the assessee filed in 1997 the writ petition before the hon'ble High Court challenging the provisions of Section 153(2A) of the Income Tax Act which was introduced from April 1, 1971. However, on that writ petition, being OJC No. 420 of 1997, on March 17,1997, a stay was granted by the hon'ble court on fresh assessment proceeding in respect of the concerned assessment years. Thereafter the writ petition was withdrawn from the High Court and its withdrawal was allowed by the High Court by its order dated September 26, 2003. 14. In this matter a remand report was filed by the Assistant Commissioner of Income Tax, Circle-I(I), Bhubaneswar. In the said remand report, it was clearly mentioned that addition to the income of the assessee for the assessment years 1962-63, 1963-64 and 1964-65 was made and such assessments were completed on March 27,1967, inter alia, on the strength of the statement recorded u/s 131 of the Income Tax Act of 14 witnesses. Their names have been mentioned in the remand report as follows: 1. Sri Naba Krishna Choudhury 2. Dr. Harekrishna Mahatab 3. Sri S.K. Kapur 4. Sri K.C. Dalai 5. Sri G.C. Pattnaik 6. Sri Bansidhar Mohanty 7. Sri M.L. Pandit 8. Sri M. N. Ghosh 9. Sri Venial Dwarakadas Mehta 10. Sri B.E. Prasad Rao Verma, manager, 11. Sri Sadhu Charan Mohanty 12. Sri Sadasiv Tripathy 13. Smt. Swaran Obhrai 14. Sri N.P. Sahu. 15. Dr. Harekrishna Mahatab 3. Sri S.K. Kapur 4. Sri K.C. Dalai 5. Sri G.C. Pattnaik 6. Sri Bansidhar Mohanty 7. Sri M.L. Pandit 8. Sri M. N. Ghosh 9. Sri Venial Dwarakadas Mehta 10. Sri B.E. Prasad Rao Verma, manager, 11. Sri Sadhu Charan Mohanty 12. Sri Sadasiv Tripathy 13. Smt. Swaran Obhrai 14. Sri N.P. Sahu. 15. It appears from the remand report that for the purpose of allowing cross-examination by the assessee of those witnesses, copies of the available statements of the twelve witnesses, namely, SI. Nos. 1 to 12 of the above list were handed over to the authorised representative of the assessee, the late Biju Pattaniak. During the hearing on June 19, 2003, the authorised representative submitted that the witnesses at SI. Nos. 1 to 10 were deceased as on that date. In the further hearing which was held on July 9, 2003, the authorised representative further submitted that the witnesses as SI. Nos. 11 and 12 are also dead. So far as witness No. 13 is concerned, it was found that the whereabouts of the said witness could not be tracted out and as such the cross-examination of witness No. 13 was not possible and so far as witness No. 14 was concerned, the authorised representative submitted the address of the said witness and summonses were accordingly issued u/s 131(1)(d) of the Act to the Income Tax Officer, Puri, to cause enquiry about the whereabouts of the witness and the possibility of his cross-examination. From the report of the Income Tax Officer, it appears that the said witness was aged about 88 years and was physically indisposed as well as hard of hearing. As such, cross-examination was not possible in respect of any of the witnesses. 16. In the light of the above facts, the following conclusions were given in the remand report: In the light of the foregoing facts of death/physical incapacity/ non-traceability of the concerned 14 witnesses, the possibility of their cross-examination by the assessee stands completely ruled out. The above is brought to the kind notice of the hon'ble Income Tax Appellate Tribunal. 17. It was therefore clear that the authorised representative of the assessee could not be given any chance to cross-examine the witnesses. As such the matter was dropped by the Income Tax Appellate Tribunal. 18. The above is brought to the kind notice of the hon'ble Income Tax Appellate Tribunal. 17. It was therefore clear that the authorised representative of the assessee could not be given any chance to cross-examine the witnesses. As such the matter was dropped by the Income Tax Appellate Tribunal. 18. Thereafter miscellaneous petitions were filed by the Revenue seeking modification of the orders of the Income Tax Appellate Tribunal dated February 22, 1994, and October 16, 2003. Those applications were also dismissed by the Income Tax Appellate Tribunal, Cuttack Bench, Cuttack, by an order dated December 19, 2003, on the ground of limitation and also on the merits. It was also mentioned in the said order that the Revenue did not mention any Section under which those miscellaneous applications were filed. 19. After those applications were dismissed by the Income Tax Appellate Tribunal, the instant miscellaneous cases have been filed before this Court u/s 151 of the CPC with the prayer mentioned above. 20. Now the question that falls for consideration before this Court is whether, in the facts and circumstances of the case discussed above, the present miscellaneous cases, namely, Miscellaneous Cases Nos. 1 to 6 of 2004 are maintainable in law and on the facts. 21. Learned Counsel for the Revenue submits that the above miscellaneous cases are maintainable as the Income Tax Appellate Tribunal refused to pass an order permitting completion of assessment taking into consideration the situation which prevailed in view of the remand report. It was urged that by filing the miscellaneous cases, the Revenue was seeking a direction to complete the assessment by giving effect to the order of the hon'ble Supreme Court. It was also submitted that in the facts and circumstances of the case, the Revenue is duty bound to give effect to the order of the hon'ble Supreme Court. 22. In the written note submitted by learned Counsel for the Revenue, it has been clearly stated that there is no provision in the Income Tax Act, 1961 which permits an aggrieved party to move the hon'ble High Court "to answer question of the hon'ble apex court". So the miscellaneous cases have been filed for carrying out the direction of the hon'ble Supreme Court and since no legal provision is made in the Income Tax Act, the inherent power of the court u/s 151 of the Code has been invoked. So the miscellaneous cases have been filed for carrying out the direction of the hon'ble Supreme Court and since no legal provision is made in the Income Tax Act, the inherent power of the court u/s 151 of the Code has been invoked. In support of such contention, reliance was placed on certain decisions. 23. Reliance was first placed on the judgment of the Allahabad High Court in the case of Roop Narain Ramchandra (P.) Ltd. Vs. Commissioner of Income Tax. In that judgment the Division Bench of the Allahabad High Court held that the Income Tax Act does not confer any power on the High Court to recall an order when it has returned a reference unanswered. The learned judges held that Section 151, Code of Civil Procedure, does not apply in connection with the reference jurisdiction under the Income Tax Act which is advisory in nature. The learned judges also held that the order returning the reference unanswered is not an administrative order but it is virtually an order dismissing the reference for non-prosecution and it is a judicial order. As such Section 21 of the General Clauses Act would not apply. 24. This Court is unable to appreciate the applicability of the aforesaid ratio to the facts of the present case. 25. The next decision cited by learned Counsel for the petitioner was rendered in the case of Jaipur Mineral Development Syndicate, Jaipur Vs. The Commissioner of Income Tax, New Delhi. In that case the learned judge did not approve the ratio in the case of Roop Narain Ramchandra (P.) Ltd. Vs. Commissioner of Income Tax. The learned judges held that a party or its counsel may be prevented from appearing at the hearing of a reference for a variety of reasons. But subsequently if a party shows that there was sufficient reason for its non-appearance, in such cases the High Court has inherent power to recall its earlier order and dispose of the reference on the merits. The learned judges held that in an appropriate situation, the High Court has the power to recall the order made in the absence of a party and there is nothing in any of the provisions of the Income Tax Act which either expressly or by necessary implication stand in the way of the High Court from passing an order of disposal of a reference on the merits. It may be noted that while discussing such powers of the High Court, the hon'ble Supreme Court made no reference to Section 151 of the Code. So this decision does not support the contention of the Revenue. 26. Reliance was also placed by learned Counsel for the petitioner on the judgment of the Supreme Court in the case of Jet Ply Wood Private Ltd. and Another Vs. Madhukar Nowlakha and Others. In that case the questions which were decided by the Supreme Court were that an application was filed for withdrawal of a suit and an order was passed permitting the withdrawal of the suit. The application was, however, not filed with any leave to file a fresh suit. The court found that there is no provision in the Code providing for filing an application for recalling an order permitting withdrawal of a suit. In such a situation the court held that Section 151 of the Code can be resorted to in the interest of justice. From the aforesaid discussion, it is clear that those findings were arrived at by the court in connection with a purely civil litigation. Such litigation is totally governed by the provisions of the Code. In that context, the learned judges of the Supreme Court held that the provisions of Section 151 of the Code can be applicable inasmuch as the provisions of the Code are not exhaustive of the powers of a civil court. In that view of the matter, the court found that in an appropriate situation the court is not powerless to set aside an order permitting the withdrawal of a suit. 27. But in the instant case the entire proceeding was under the Income Tax Act which is a self-contained code. Reference in this connection is made to the decision of the Supreme Court in the case of Ravula Subba Rao and Another Vs. The Commissioner of Income Tax, Madras. The learned judges of the Supreme Court while construing the different provisions of the Income Tax Act, relied on the rule of construction formulated by Lord Herschell in the case of Bank of England v. Vagliano reported in [1891] AC 107 (HL). Referring to the formulation of Lord Herschell, the learned judges conclusively held that the provisions of the Indian Income Tax Act form a self-contained code exhaustive of the matters dealt with therein. Referring to the formulation of Lord Herschell, the learned judges conclusively held that the provisions of the Indian Income Tax Act form a self-contained code exhaustive of the matters dealt with therein. It has also been held subsequently in the case of Karamchari Union, Agra Vs. Union of India and Others, that the Income Tax Act is a self-contained code. 28. The nature of jurisdiction of the High Court u/s 256 of the Income Tax Act has been examined by the apex court in the case of Commissioner of Income Tax Vs. Bansi Dhar and Sons. The said decision is also reported in Commissioner of Income Tax Vs. Bansi Dhar and Sons, . 29. With regard to the limits of the nature of jurisdiction, the learned judges found that the jurisdiction of the High Court was confined to merely giving an opinion and it was purely an advisory jurisdiction. 30. The apex court after discussing the relevant case law on the subject ruled clearly that apart from the court's incidental or ancillary power in dealing with a reference, the High Court does not have any inherent power u/s 151 of the Code while dealing with a reference. The pertinent observations of the apex court on this point at pages 681-682 of the Report are set out: Section 66 of the Income Tax Act of 1922 or Section 256 of the Income Tax Act, 1961, is a special jurisdiction of a limited nature conferred not by the CPC 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 hearing or giving some additional time to file the paper book, such powers inhere to the jurisdiction conferred upon it. 31. This point has been further clarified at page 682 of the Report as follows: In our opinion, there the High Court was in error in exercising its jurisdiction by passing an order for stay of realisation u/s 151 of the CPC in a pending reference. 31. This point has been further clarified at page 682 of the Report as follows: In our opinion, there the High Court was in error in exercising its jurisdiction by passing an order for stay of realisation u/s 151 of the CPC in a pending reference. 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 under Article 226 or Article 227 in appropriate cases. But that was not the case here. 32. The same principles have recently been reiterated by the Division Bench of the Calcutta High Court in the case of Commissioner of Income Tax Vs. Ruby Traders and Exporters Ltd., . 33. Here it is not a case of exercise of incidental or ancillary power which is prayed for by the Revenue in the miscellaneous cases. The prayer is for reopening of a judgment delivered on August 1, 1990, which has attained finality long ago. That is why the Revenue sought to invoke the court's inherent power. Sitting in reference jurisdiction of the High Court we cannot exercise the court's inherent power u/s 151 of the Code in view of the clear legal position settled by the apex court in the case of Commissioner of Income Tax Vs. Bansi Dhar and Sons, . 34. Apart from the question of non-application of Section 151 of the CPC to the reference jurisdiction, otherwise also the miscellaneous cases are not maintainable. In the instant case, the findings given by the High Court in exercise of its reference jurisdiction on August 1, 1990, (reported in Commissioner of Income Tax Vs. Biju Patnaik, ) have not been challenged by filing an appeal before the hon'ble Supreme Court. The said findings have become final. The findings given by the High Court in exercise of its reference jurisdiction u/s 256 of the Income Tax Act are as follows: (a) the assessee had not been given a reasonable opportunity to rebut the statements recorded ex parte u/s 131 of the Act. The said findings have become final. The findings given by the High Court in exercise of its reference jurisdiction u/s 256 of the Income Tax Act are as follows: (a) the assessee had not been given a reasonable opportunity to rebut the statements recorded ex parte u/s 131 of the Act. The Income Tax Officer failed to consider all the evidence on record ; (b) the assessee was not called upon to furnish explanation on certain points ; (c) the High Court recorded that learned Counsel for both the parties fairly stated before it that those findings of the Tribunals at (a) and (b) were not disturbed by the hon'ble Supreme Court; (d) the answer on the questions framed by the Supreme Court would be "inconclusive" in view of the subsisting finding of the Tribunal that the Income Tax Officer has not given a reasonable opportunity to the assessee to rebut the statement recorded against him u/s 131 of the Act; (e) the High Court further held that if the High Court answers the questions in the absence of reasonable opportunity being afforded to the assessee, such answers would be of "academic interest" ; (f) a clear and conclusive finding binding on the parties can be given only after reasonable opportunity is given to the assessee as was the finding of the Income Tax Appellate Tribunal which finding has not been disturbed ; (g) the High Court was also of the opinion that in its advisory jurisdiction, it was not desirable for the High Court to record findings of facts and, therefore, the High Court held that no answer should be given in exercise of its advisory jurisdiction which would finally decide the issue since a final finding can be arrived at only after giving reasonable opportunity to the assessee as the explanation given by the assessee would have a material bearing on the finding ; and (h) therefore, the High Court thought that the Assessing Officer should give an opportunity to the assessee. 35. On the basis of those findings of the High Court, the Income Tax Appellate Tribunal passed a consequential order by restoring the matter to the Assessing Officer with a direction to pass a fresh order after allowing reasonable opportunity of being heard to the assessee in the light of the judgment of the High Court. 35. On the basis of those findings of the High Court, the Income Tax Appellate Tribunal passed a consequential order by restoring the matter to the Assessing Officer with a direction to pass a fresh order after allowing reasonable opportunity of being heard to the assessee in the light of the judgment of the High Court. Thereafter the remand report was filed showing that cross-examination of those 14 witnesses by the assessee's representative is not possible. 36. Now there is no challenge to the judgment of the High Court. Nor is there any challenge to the order of the Income Tax Appellate Tribunal passed on February 22,1994, or to the remand report. On the basis of the remand report, the proceedings were dropped. Therefore all these orders have become final. 37. Therefore, the proceeding in which questions were framed by the hon'ble Supreme Court for an answer has come to an end with the order of the High Court followed by the consequential order passed by the Income Tax Appellate Tribunal. Since neither the order of the High Court nor the order of the Tribunal has been questioned and those orders have become final, those questions cannot be reopened on the basis of a miscellaneous case filed u/s 151 of the CPC which does not at all apply to the exercise of reference jurisdiction by the High Court. 38. That apart, from the remand report it is clear that none of the witnesses are available for cross-examination. As such no purpose will be served by seeking to reopen the proceedings on the basis of these misconceived miscellaneous cases and the whole thing has become academic. In fact the High Court in its judgment referred to above reported in Commissioner of Income Tax Vs. Biju Patnaik, has come to a conclusion that the entire thing will be academic if the witnesses cannot be examined. These conclusions were reached by the High Court in the year 1990. After 16 years, the position obviously has not improved. 39. For the reasons aforesaid, the miscellaneous cases are dismissed as totally misconceived and not maintainable.