Appeal No 507 of 1957
Appeal by special leave from the order and judgment dated September 28 1955 and February 20 1956 of the Bombay High Court in Income tax Reference No 28 of 1955
RJ Kolah and I N Shroff for the appellant
C K Daphtary Solicitor General of IndiaB Ganapathy lyer and D Gupta for the respondent
March 30
The Judgment of the Court was delivered by HIDAYATULLAH J
This is an appeal with the special leave of this Court and is directed against an order dated September 28 1955 and a judgment dated February 20 1956 of the High Court of Bombay
By the order the High Court reframed a question referred to it by the Appellate Tribunal at Bombay which it answered by its judgment
Mrs Kusumben D Mahadevia hereinafter referred to as the assessee who has filed this appeal was at all material times residing in Bombay
She was a shareholder holding 760 shares of Mafatlal Gagalbhai  Co Ltd Bombay
For the assessment year 1950 51 the previous year being the calendar year 1949 she was assessed to income tax on a total income of Rs 150765 which included a grossed up dividend income of Rs 147026
In the latter income was included a sum of Rs 47120 being the dividends declared by Mafatlal Gagalbhai  Co Ltd Bombay
Mafatlal Gagalbhai  Co Ltd is a private limited Company with its registered office at Bombay
It was at all material times resident and ordinarily resident  in British India
It was also doing business in the former Baroda State and used to keep its profits derived in that State with Mafatlal Gagalbhai Investment Corporation Navsari
In the year 1949 Mafatlal Gagalbhai  Co Ltd declared dividends out of these accumulated profits by three resolutions which are reproduced 25 3 1949
 That a further dividend of Rs 17 per ordinary share free of income tax for the year 1947 be and is hereby declared absorbing Rs 429250 419 and the same be payable in Navsari out of the profits of the year 1947 lying at Navsari 24 9 1949
 That a further dividend of Rs 24 per ordinary share free of income tax for the year 1948 be and is hereby declared absorbing Rs 606000 and the same be payable in Navsari out of the profits of the year 1948 lying at Navsari with Messrs MG Investment Corporation Ltd on or after 30th April 1949
 24 9 1949
 Resolved that an Ad interim dividend of Rs 21 per ordinary share free of income tax absorbing Rs 530250 be and is hereby declared for the year 1949 out of the income of the Company for the year 1949 remaining unbrought with Messrs M G Investment Corporation Ltd Navsari and that the same be payable in Navsari on or after 30th April 1949
 The assessee did not bring these dividends into British India
She claimed the benefit of para
4 of the Merged States Taxation Concessions Order 1949 hereinafter referred to briefly as the Concessions Order but the Tribunal held that the income did not accrue to her in the Baroda State
The Tribunal pointed out that the dividends were declared by Mafatlal Gagalbhai  Co Ltd out of its profits which had accrued partly in what was then called British India and partly in the Indian State
The dividend was thus declared out of  composite profits 
It further pointed out that the assessee had paid for and acquired the shares of a Company in British India and was thus holding an asset in British India and that the income was from that asset
The Tribunal however at the instance of the assessee drew up a statement of the case under section 661 of the Indian Income tax Act and referred the following question to the High Court  Whether the net dividend income of Rs 47120 accrued to the assessee in the former Baroda State or whether it is income accrued or deemed to have accrued to the assessee in British India  When the reference was heard the High Court was of the opinion that the Tribunal ought to have decided and referred also the question whether the Concessions 420 Order applied to the assessee
The High Court recognised the grievance of the assessee that no such point was raised before the Tribunal
The High Court however by its order dated September 28 1955 decided that there was no need to send the case back for a supplemental statement since all the facts necessary to decide the two questions were before the High Court
The High Court then reframed the question as it said to comprehend the two points of law in the following words  Whether the assessee is entitled to any concession under the Merged States Taxation Concessions Order 1949 with regard to the net dividend income of Rs 47120 The reference then came up for final disposal on February 20 1956 and the High Court answered the question in the negative holding that para
4 of the Concessions Order did not apply to the assessee
The High Court did not decide where the income had accrued to the assessee
Leave to appeal to this Court was refused by the High Court but the assessee applied to this Court for special leave against both the order and the judgment and obtained it and the present appeal has been filed
At the very outset the assessee has questioned the jurisdiction of the High Court to frame and deal with a question of law not arising out of the order of the Tribunal
The assessee points out that the Tribunal had decided that the income had accrued in British India
The assessee had challenged this part of the decision and if the Commissioner felt it necessary he should have obtained the decision of the Tribunal and asked for a reference on the other point also
Since the Tribunal had not gone into the question of the applicability to the assessee of the Concessions Order and had not expressed any opinion thereon the assessee contends that the High Court could not raise the question on its own and decide it
The assessee strongly relies upon a decision of this Court in New Jehangir Vakil Mills Ltd vs Commissioner of Incometax 1
In that case the Bombay High Court had 1 421 directed the Tribunal to submit a supplementary statement of the case on points not arising from the order of the Tribunal and this Court held that the High Court had no jurisdiction to do so
The learned counsel for the Commissioner on the other hand contends that the question was the assessability of the assessee who claimed the benefit of the Concessions Order
The main question was thus the applicability of the Concessions Order and the question of the accrual of the income whether in British India or in Baroda was merely ancillary
The latter question was according to the respondent included in the first question and the High Court was right when it framed a comprehensive question and answered it in the sequence it did
The respondent points out that the High Court having held that the Concessions Order did not apply was not required to decide the other limb of the question as it became unnecessary to do so
In our opinion the objection of the assessee is well founded
The Tribunal did not address itself to the question whether the Concessions Order applied to the assessee
It decided the question of assessability on the short ground that the income had not arisen in Baroda but in British India
That aspect of the matter has not been touched by the Bombay High Court
The latter has on the other hand considered whether the Concessions Order applies to the assessee a matter not touched by the Tribunal
Thus though the result is the same so far as the assessment is concerned the grounds of decision are entirely different
The High Court felt that the question framed by it comprehended both the aspects and perhaps it did
But the two matters were neither co extensive nor was the one included in the other
The question of accrual of income has to be decided under the Incometax Act and has but little to do with the Concessions Order
That question can be adequately decided on the facts of this case without advertence to the Concessions Order
It cannot therefore be said to be either coextensive with or included in the decision of the question actually considered by the High Court to wit whether the Concessions Order applied or not
If this 54 422 be so it is manifest that the Tribunal decided something which stands completely outside the decision of the Bombay High Court
The High Court also decided a matter which was not considered by the Tribunal even as a step in the decision of the point actually decided
The two decisions are thus strangers to each other though they lead to the same result
Section 66 of the Income tax Act which confers jurisdiction upon the High Court only permits a reference of a question of law arising out of the order of the Tribunal
It does not confer jurisdiction on the High Court to decide a different question of law Dot arising out of such order
It is possible that the same question of law may involve different approaches for its solution and the High Court may amplify the question to take in all the approaches
But the question must still be one which was before the Tribunal and was decided by it
It must not be an entirely different question which the Tribunal never considered
The respondent attempted to justify the action taken by contending that the decision of the question of the accrual of the income with reference to the place of accrual implied the applicability of the Concessions Order
We do not agree
If this were so there would be no necessity to frame the question again
Indeed the High Court itself felt that there were two limbs of the question of assessability and reframed the question to cover both the limbs
Where the High Court went wrong was in not deciding both the limbs but one of them and that too the one not decided by the Tribunal
The resulting position can be summed up by saying that the High Court decided something which the Tribunal did not and the Tribunal decided something which the High Court did not
This is clearly against the provisions of section 66
The respondent referred to Scindia Steam Navigation Co Ltd vs Commissioner of Income tax 1 Commissioner of Income tax vs Breach Candy Swimming Bath Trust 2  and Ismailia Grain Merchants Association vs Commissioner of Income tax 3
They 1 2 3 423 were all decisions of the same Court and arose in different circumstances
In two of them the question was wide enough to take in a line of reasoning not adopted by the Tribunal and in the third the question was widened by deleting a reference to a section when another section was also material
They were not cases where the issues of law as decided by the Tribunal and the High Court were entirely different which is the case here
The Punjab High Court has taken a contrary view in Mash Trading Co vs Com missioner of Income tax 1
For the reasons given above we are of opinion that the High Court exceeded its jurisdiction in going outside the point of law decided by the Tribunal and deciding a different point of law
The order of the High Court will therefore be set aside and the case will be remitted to the High Court to decide the question framed by the Tribunal
In view of the fact that both the assessee and the Commissioner pointed out the anomaly to the  High Court and the question was reframed in spite of this the costs of this appeal shall be costs in the reference to
be heard by the High Court and will abide the result
Appeal allowed
Case remitted


Summary:
Thirteen candidates filed their nomination papers for election to the Legislative Assembly of Madhya Pradesh
The nomination of U was rejected on the ground that he failed to give a declaration as to his age as required in the nomination paper
After the poll the appellants were declared duly elected
Thereupon one of the unsuccessful candidates J filed an election petition challenging the election of the appellants inter alia on the ground that the nomination of U had been improperly rejected
The Election Tribunal dismissed the petition holding that U made no attempt before the returning officer to remedy the defect in the nomination paper that the defect could not in law have been remedied at the stage of the scrutiny that the defect was of a substantial character and that the rejection of the nomination was proper
On appeal the High Court held that at the time of the scrutiny U had offered to supply the omission but the returning officer had refused to allow him to do so that the returning officer was bound to make a summary enquiry before rejecting the nomination that the non mention of age in the nomination paper was not a defect of a substantial character and that the rejection of the nomination was improper and consequently allowed the appeal and set aside the election of the appellants 651 Held that the omission to give the declaration as to age in the nomination paper was a defect of substantial character within the meaning of section 364 Representation of the People Act 1951 and the rejection of the nomination for such an omission was proper
Rattan Anmol Singh vs Atma Ram   Pranlal Thakorlal Munshi vs lndubhai Bhailabhai Amin  Rup Lal vs jugaraj Singh  Brij Sundar Sharma vs Election Tribunal Jaipur  Balasubyahmanyan vs Election Tribunal Vellore and Ramayan Shukla vs Rajendra Prasad Singh  referred to
Durga Shankar Mehta vs Thakur Raghuraj Singh 1955 SC 140 and Karnail Singh vs Election Tribunal Hissar  distinguished
Charanjit Lal Ram Sarup vs Lohri Singh Ram Narain AIR 1958 Punj
433 disapproved
The word  defect in section 364 included an omission to specify the details prescribed in the nomination
The distinction drawn in English cases between an  omission  and  inaccurate description depended upon the specific provisions of the English statutes and did not obtain under the Indian Law
The Queen vs Tugwell and Baldwin vs Ellis  distinguished
Cases failing under section 362 b must be distinguished from those falling under section 362 a
Where the nomination paper did not comply with the provisions of section 33 of the Act the case fell under section 362 b and the defective nomination had to be accepted or rejected according as the defect was of an unsubstantial or of a substantial character
In such a case it was not necessary for the returning officer to hold any enquiry