Income-tax---

----Reference---Third party cannot apply for reference---High Court and Appellate Tribunal have no suo motu power to direct reference.

Only a party to an appeal to the Appellate Tribunal can ask for a reference. Third parties have no right to request for reference. Even the Tribunal has no suo motu power under section 256 of the Indian Income-tax Act, 1961, and the High Court has also no suo motu power under section 256(2) to ask for a reference.

State of Orissa v. Divisional Forest Officer (1973) 32 STC 487 (Orissa) fol.

Mrutunjay Pani v. Narmada Bala Sasmal (1961) AIR 1961 SC 1353; (1961) 27 CLT 286 ref.

Standing Counsel and A.K. Roy for the Petitioner.

B.N. Rath for the Respondent.

M.R. Mohanty, D. Mohapatra and K.K. Swain for the Intevener.

JUDGMENT

S.C. MOHAPATRA, J.---The applicant seeks to intervene in this reference made by the Tribunal under section 256(1) of the Income-tax Act, 1961.

Excepting that the assessee is a political man having political rivalry, there is no other ground for considering the application for intervention. There is no scope under the Act for a third person to approach the Income-tax Officer to assist it to make assessment of the assessee. Thus, the Income-tax Officer could not have allowed the prayer of the petitioner. An appeal under the Act can be filed either by the assessee or by the Department. There is no scope for a third person who is not affected directly either by adding an amount to the income or deducting the same from the income of the assessee to prefer an appeal. Thus, appeal by the applicant would have been incompetent. A party to an appeal can only request for reference on a question of law arising out of the order. Third parties to assessment like the applicant have no right to request for a reference. Even the Tribunal has no suo motu power under section 256 of the Act and this Court has also no suo motu power under section 256(2) of the Act for a reference. No other provision under the Income-tax Act has been brought to our notice where a person who is not an assessee can have any say in the matter of assessment.

Mr. M.R. Mohanty, learned counsel for the applicant, submitted that in respect of the , trust which is the question involved in this case three conditions are to be satisfied to attract section 90 of the Trusts Act as has been decided by the Supreme Court in the decision reported in Mrutunjay Pani v. Narmada Bala Sasmal (1961) 27 CLT 286; AIR 1961 SC 1353. This decision has no relevancy to consider whether the applicant would be allowed to intervene. We are not able to appreciate at this stage why Mr. Mohanty relied upon the aforesaid decision. What would be the principle under section 90 of the Trusts Act can be exhaustively submitted by the assessee as well as the Department. A third party's assistance in that respect is not called for. Even if we would have power under the Act, we might not have also allowed the applicant to intervene since it is not shown how his right is going to be affected.

So far as this Court is concerned, question of intervention in references under the taxing statutes is no more res integra. In State of Orissa v. Divisional Forest Officer, Karanjia Division (1973) 32 STC 487 (Orissa), it has been observed as follows (at p. 494):

"There is no provision for intervention in a reference application and, therefore, we had not allowed intervention.

In view of the binding decision of the Division Bench of this Court as well as on the discussion made above, we are satisfied that the application for intervention is not sustainable.

In the result, the application for intervention is dismissed. No costs.

J.M. MAHAPATRA, J.---I agree.

M.BA./1577/T???????????????????????????????????????????????????????????????????????? Application dismissed.