1. The question that arises for our consideration in this appeal does not seem to have been considered by any Court. Perhaps the reason is--so it seems to us-- that the answer is very obvious. It appears that the petitioner company transferred to a subsidiary company the business of Eros Theatre and Restaurant and the subsidiary company paid Rs. 5,00,000/- for goodwill.

An application was made to the Appellate Tribunal under Section 66(1) of the Income-tax Act with regard to the assessment of the petitioner company, the income-tax authorities having held that in respect of the petitioner companys chargeable accounting period 1943 the Excess Profits Tax Officer was not bound to take into consideration the value of the goodwill in computing the average capital for the purpose of Section 6(1) of the Excess Profits Tax Act.

As the tribunal rejected the application the petitioner company approached the High Court under Section 66(2) and we directed the tribunal to state a case and the question of law on which we asked the tribunal to state a case was whether in the computation of capital employed in the business of the assessee the Tribunal erred in not including the value of the goodwill or any portion thereof.

We answered this question in favour of the assessee. The Appellate Tribunal then passed an order valuing the goodwill of the Eros Theatre and Restaurant at Rs. 2,00,000/- and the petitioner company applied to the Tribunal under Section 66(1) to refer a question of law which arose out of this decision of the Tribunal.

The Tribunal took the view that the application was misconceived and dismissed it. On that the petitioner company presented a petition before Desai J. for a writ directing the Tribunal to hear this application which had been dismissed by the Tribunal. The learned Judge granted the relief sought, to the petitioners and the Income-tax Authorities have now come in appeal.

2. Mr. Joshi who appears for the Income-tax Authorities is perfectly right when he contends that the power of reference is a limited power conferred upon the High Court under Section 66 and that we should not extend the ambit of that power. He is equally right when he contends that a reference only lies under Section 66 provided that a question of law arises out of an order passed by the Tribunal under Sub-section (4) of Section 33, and his whole attempt has been to satisfy us that the second order passed by the Tribunal was not an order passed under Section 33(4).

His submission is that the powers that the Tribunal exercises under Section 33 and under Section 66(5) are separate and distinct powers and they should not be confused and when the High Court disposes of a reference and exercises its advisory jurisdiction and gives directions to the Tribunal to give effect to its judgment, it is exercising a function Which falls under Section 66(5) and not under Section 33(4), and inasmuch as no reference can arise out of an order passed by the Tribunal under Section 66(5) the application of the petitioners was incompetent.

3. Looking to the scheme of the Act, under Section 33 the Appellate Tribunal is constituted the appellate authority over the decisions of the Appellate Assistant Commissioner, and under Sub-section (4) it is provided:

"The Appellate Tribunal may, after giving both parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, and shall communicate any such orders to the assessee and to the Commissioner." Sub-section (6) provides;

"Save as provided in Section 66 orders passed by the Appellate Tribunal on appeal shall be final."

Therefore it is clear that except in cases which may go up to the High Court on a reference, the decision of the Appellate Tribunal under Section 33 is final. But where a reference does go up to the High Court, no finality attaches to the decision of the Appellate Tribunal because by reason of the decision of the High Court the decision given by the Appellate Tribunal is liable