The absence of essential documents, such as the order of the Tribunal, can prevent the Court from effectively answering a question referred to it for its opinion.

( 1 ) INCOME-TAX Appellate Tribunal (in short, the Tribunal) has referred the following question of law for the opinion of this Court :-

"whether on the facts and in the circumstances of the case, the Tribunal is legally correct in allowing the expenditure" of Rs. 18,823. 00 incurred prior to the accounting period relevant to the assessment year 1974-75 in computing taxable income for assessment year 1974-75 ?

( 2 ) MR. Aggarwal, learned counsel appearing on behalf of the assessee, raised two preliminary objections in the matter. Learned counsel would contend that in the absence of the order of the Tribunal, passed under Section 254 of the income-tax Act, 1961, the Court cannot effectively answer the question. In support of the said contention reliance has been placed on CIT v. Bombay Master Printers Association, (1984) 146 ITR 339, Mar Thoma Rubber Co. Ltd v. CIT 102 current Taxation Report 9, and CIT v. ITAT, [1998] 232 ITR 207.

( 3 ) HE would next contend that in any event, as the amount of tax, in the event the question being answered in favour of the assessee, would only be about rs. 13,000. 00 and the matter has been pending for more than twenty years, in terms of the circular issued by the Board of Direct Taxes ( hereinafter referred to as, the board), the matter ought not have been referred to this Court for its opinion at all.

( 4 ) IN support of the said contention the learned counsel relied upon the decision of Mathew M Thomas v CIT, (1999) 236 ITR 691 and CIT vs Imperial surgical Co Pvt Ltd (1991) 192 ITR 647.

( 5 ) MR Sanjiv Khanna, appearing on behalf of the Revenue, on the other hand, would submit that there does not exist any circular of the Board in terms whereof the Tribunal can be said to be refrained from making any reference for opinion of this Court in exercise of its jurisdiction under Section 256 (1) of the income-tax Act (hereinafter referred to as the Act ). Learned counsel would contend that circulars which do not have any statutory flavour are not enforceable. Strong reliance has been placed on a decision in Janta Metal Works vs ITO [ 1990 ] 186 ITR 458 and a judgment in CIT v. Anjum MH Ghaswala and Ors , JT 2001 (9) SC 61.

( 6 ) THE fact of the matter is as follows: the assessee company was incorporated on 22/04/1972 and closed its accounting period on 30/06/1973. It claimed Rs. 18,823. 00 as expenses which were not allowed by the assessing officer being not relevant to the accounting period because the accounting period of the assessee ended on 310th june, 1973. The assessee went in appeal but the Appellate Assistant Commissioner confirmed the disallowance. The assessee preferred an appeal before the Tribunal who allowed the claim of the assessee. When being moved for a reference to this court, the Tribunal declined to refer the matter. The Revenue moved this Court on the question of law as set out above which was eventually referred for the opinion of this Court.

( 7 ) IT is not in dispute that the order of the Tribunal has not been annexed to the paperbook. It is also otherwise available on record. In the absence of the order passed by the Tribunal, which is a basic document, in our opinion, the first preliminary objection raised by Mr Aggarwal should be upheld. The order of the Tribunal is a basic document. The questions of law which are required to be answered must be on the basis of the finding of fact arrived at finally by the Tribunal. The question which has been referred to this Court for its opinion is to be answered in the facts and circumstances of this case. For an effective answer to the said question, it is essential to know the findings of the Tribunal. This Court in respect of a question of this nature must have before it all the basic materials so as to enable it to arrive at a decision as to whether the Tribunal is right or wrong in passing Its order under section 254 of the Act.

( 8 ) IN Bombay Master Printers Association s case ( supra) a Division bench of Bombay High