B. K. MEHTA, P. D. DESAI, J.

( 1 ) THE Gujarat Sales Tax Tribunal (hereinafter referred to as the Tribunal) has referred the following question of law for the opinion of this Court under sec. 61 (1) of the Bombay Sales Tax Act 1969 (hereinafter referred to as the Act):"whether on the facts and in the circumstances of this case the Tribunal was right in law in holding that under rule 43 (1) (a) (i) of the Bombay Sales Tax Rules 1959 the opponent was entitled to claim set off of the whole amount of tax which the selling dealers had actually recovered from it and not merely the amount of tax which was legally recoverable by them on the relevant sales of scrap batteries ?"

( 2 ) ). After the hearing of the reference commenced but before it concluded Mr. A. J. Patel learned Assistant Government Pleader appearing on behalf of the applicant State stated to the Court that the applicant does not wish to prosecute the reference and that under the circumstances the question need not be answered. Ordinarily upon this statement being made the matter would have been treated as having concluded and all that we would have been required to do was to record that since the applicant declares that it does not pursue the reference the question is not required to be answered However. Mr. R. D. Pathak learned advocate appearing on behalf of the opponent assessee submitted that once a case is stated in respect of a question the party at whose instance the case is stated is not entitled to abandon the proceeding unilaterally and to state that the question need not be answered as it is not pressed and that it is within the discretion of the Court even under such circumstances to consider and decide whether or not to answer the question and in exercising the discretion the Court is required to take into account all the relevant circumstances and for that purpose to afford a hearing to the partyopponent. In support of this submission Mr. Pathak invoked the aid of the decisions in KARNANI INDUSTRIAL BANK LTD. V C. T. 30 I. T. R. 16 AND K. CH. VENKATARATNAM V. C. G. T. 95 I. T. R. 277.

( 3 ) ). Before considering the question on principle and on the basis of the decided cases it would be proper to look at the legal provision whereunder this Court derives its advisory jurisdiction under the Act and to consider the question raised in light of the statutory language. The relevant provision is sec. 61 which reads as follows :"61. (1) Within ninety days from the date of the communication of the order of the Tribunal passed in appeal or revision being an order which affects the liability of any person to pay tax or penalty or to forfeiture of any sum or which affects the recovery from any person of any amount under sec 39 that person or the Commissioner may by application in writing (accompanied where the application is made by that person by a fee of one hundred rupees) require the Tribunal to refer to the High Court any question of law arising out of such order; and where the Tribunal agrees the Tribunal shall as soon as may be after the receipt of such application draw up a statement of the case and refer it to the High Court;provided that if in the exercise of its power under this sub-section the Tribunal refuses to state the case which it has been required to do on the ground that no question of law arises that person or as the case may be the Commissioner may within thirty days of such refusal either withdraw his application (and if he dues so any fee paid shall be refunded) or apply to the High Court against such refusal. (2) If upon receipt of an application under sub-sec. (1) the High Court is not satisfied as to the correctness of the decision of the Tribunal it may require the Tribunal to state the case and refer it; and accordingly on receipt of any such requisition the Tribunal shall state the case and refer it to the High Court. (3) If the High Court is not satisfied that the statements in the case referred under this section are sufficient to enable

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