1. ' S. P. BHARUCHA, J.---Delay condoned.
2. ' Special leave granted.
3. ' The Revenue sought the reference of the following two questions: "(1) Whether, on the facts and in the circumstances of the case, the Tribunal was right in law, in holding that the Commissioner of Income-tax had no jurisdiction and powers to initiate proceedings under section 263 of the Income Tax Act, 1961, in respect of issues not touched by the Commissioner of Income-tax (Appeals) in his appellate order?
(2) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that not only the issues dealt within the assessment order but also the other issues were merged in the Commissioner of Income-tax (Appeal's) order ignoring the provisions contained in clause (c) of Explanation to subsection (1) of section 263 of the Income Tax Act, 1961?"
4. ' The High Court at Bombay declined to call for the reference. Hence, the appeal.
5. ' Notice on the special leave petition has been served upon the respondent but he has not chosen to appear. The notice stated that the matter might be disposed of at the special leave petition stage in view of the judgment of this Court, dated January 23, 1996, in T.R.C. No,11 of 1983, CIT v. Shri Arbuda Mills Ltd. (1998) 231 ITR 50.
6. ' That judgment covers the two questions that were sought to be raised. They were questions of law and the High Court ought to have called for a reference thereof, but, having regard to the fact that this Court has in the aforementioned case squarely dealt therewith we shall deem this to be a reference of the questions to ourselves and, following the aforementioned case, answer the questions thus: in the negative and in favour of the Revenue.