JUDGMENT
[ENTITY], J. :
The applicant [CIT, Bhopal] has filed these seven reference applications as particularised above proposing three common questions of law under [SECTION] of the [ACT] (for short the Act) seeking direction to the Tribunal to state the case and refer the questions of law as extracted below arising out of the order dt. 30th Oct., 1990 passed by the Tribunal in appeals :
"(i) Whether, on the facts and circumstances of the case, the Tribunal has not misdirected itself in ignoring the show cause notice served under [SECTION] of [ACT] by merely relying on the service of subsequent notice ?
(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was legally correct in cancelling the penalty instead of remitting it back to the Assessing Officer when the statutory notices were validly served and adequate opportunity was given to the assessee ?
(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in coming to the conclusion that reasonable opportunity was not given to the assessee merely on the basis of second notice ?"
2. Facts of the case lie in a narrow compass.
The non-applicant (assessee) filed the return late as a result of which penalty was levied under [SECTION] of the Act. No statement was filed as regards the payment of advance tax and as such penalty was also levied under [SECTION] of the Act. [ENTITY] and [ENTITY] presented inaccurate estimate and, hence, penalty under [SECTION] of the Act was also levied. The aggrieved assessees eventually filed the [CASE NUMBER] for asst. yrs. 1979-80 to 1982-83. The Tribunal allowed the appeals. The applicant felt aggrieved by the decision and, therefore, filed the applications under [SECTION] of the Act which were registered as No. 9, 10, 12, 13, 14, 15, 16, 17 and 18 to 21/Ind/91 seeking reference of the questions. The Tribunal rejected the applications. The applicant, therefore, filed these reference applications under [SECTION] of the Act.
3. On consent, these reference applications are taken up for final disposal.
4. We have heard Shri [ENTITY], learned counsel for the applicant in all these reference applications. None appeared for the non-applicants-assessees.
5. The Tribunal refused to refer the questions and held as under :
"Learned Departmental Representative stressed on the proposed question No. 4 that the order of the Tribunal is perverse. He placing reliance on [PRECEDENT], argued that where the finding of the Tribunal is perverse, a question of law does arise for reference. There cannot be any quarrel with this proposition of law. But the learned Departmental Representative could not point out any perversity in the order of the Tribunal when it is mostly decided on legal principles. As stated above, all the findings of the Tribunal have not been questioned and, therefore, even otherwise the questions proposed are merely academic. That apart, as stated above, the questions do not arise out of the order of the Tribunal.
In the result, the applications are rejected."
6. We find that the assessing authority had issued another notice. It also transpired from the record that notices to the assessees [ENTITY], [ENTITY] and [ENTITY], admittedly minors, were issued and not to their legal guardians. The Tribunal found that such notices were illegal and invalid because the minors were incompetent to receive such notices and to submit reply in compliance thereof. On the ground of absence of proper notice and thus, reasonable opportunity of hearing, the Tribunal cancelled the penalty as being without authority of law. The assessees demonstrated this infirmity and the Tribunal accepted the contention of infirmity. This conclusion is well supported from evidential material. It is not contended that this conclusion is based on no evidence.
7. In [PRECEDENT], it is held as under :
"In [PRECEDENT] the principles governing reference under [SECTION] of 1922 Act similar to [SECTION] of 1961 Act were discussed and it was held that the High Court has no power under [SECTION] of the [ACT] which is in pari materia with [SECTION] of the Act, to call upon the Tribunal to state a case if there was some evidence to support the finding recorded by the Tribunal, even if it appears to the High Court that on a reappreciation of the evidence, it might arrive at a conclusion different from that of the Tribunal."
8. Manifestly there is evidence to support the findings recorded by the Tribunal.
9. These findings of fact, not shown to be perverse or perishable, reached by the Tribunal did not give, as held in [PRECEDENT] and in [PRECEDENT], any rise to the question of law and as such the Tribunal rightly rejected the reference applications. Recourse to [SECTION] of the [ACT] is, thus, not justified and is acarpous.
10. The findings as recorded by the Tribunal were not challenged even at the stage of making the request for reference. The conclusion rests on firm foundation.
11. We find that the Tribunal did not misdirect itself and did not commit any error in cancelling the penalty and in refusing the order of remittal of the matter. We also find that the Tribunal was right in reaching the conclusion that reasonable opportunity was not given to the assessee. The issuance of second notice itself manifested the infirmity in the proceedings. If certain thing is required to be done in certain manner, then it should be taken as if other manners are forbidden. In this case, the Tribunal clearly noted the non-compliance of legal provision. This then vitiated the orders of the lower authority. [PRECEDENT] may be referred.
12. In the result, we are satisfied with the correctness of the view taken by the Tribunal and find that refusal of reference is justified. We are, thus, satisfied that the proposed questions of law as noted above, do not arise out of the orders passed by the Tribunal and as such, these reference applications should suffer the fate of dismissal.
13. Accordingly, we find that these reference applications are not worthy of being allowed. Consequently, we reject these applications with no orders as to costs.
14. Counsel fee in each of the above applications shall be Rs. 750, if certified.