D.b. Income Tax Reference Application v. Dated : 21.09.2007

D.B. INCOME TAX REFERENCE APPLICATION NO.101/1999[CIT, JODHPUR VS. SMT. CHANDRA BOOB] DATED : 21.09.2007 HON'BLE MR. BHAGWATI PRASAD, J.HON'BLE MR. MUNISHWAR NATH BHANDARI, J. Mr.K.K.Bissa for the applicant.Mr.Sanjeev Jodhari for the respondent. BY THE COURT : [AS PER HON'BLE MR. BHANDARI,J.] Revenue has preferred this reference application under theprovisions of Section 256 [2] of the Income Tax Act, 1961. The IncomeTax Appellate Tribunal had refused to make reference of any of thequestions, vide its order dated 28.01.99. A reference application was filed before the Income Tax AppellateTribunal under the provisions of Section 256 [1] of the Income Tax Actfor reference of certain questions to this Court. Those questions werearising out of the order of the learned Tribunal vide its order dated25.08.98 in relation to the block Assessment Years 1986-87 to 1996-97. following questions were sought for reference. “[1]Whether on the facts and in thecircumstances of the case the ITAT was justified inlaw in altogether ignoring the circumstantial evidenceand deleting the addition of Rs.2,51,056/- made asundisclosed income for asstt. Year 1991-92 onaccount of unexplained investment in gold ornamentsetc.? [2] Whether on the facts and in the circumstances ofthe case the ITAT was justified in law in deleting theaddition of Rs.45,525/- made as undisclosed incomefor asstt. Year 1991-92 on account of unexplainedinvestment in silver articles? [3] Whether on the facts and in the circumstances ofthe case the ITAT was justified in law in holding thatthe statement of the assessee's husband regardingsurrender on account of unexplained invesment inconstruction of house at 115 Central School Scheme,Jodhpur recorded at the time of search is to beignored. [4] Whether on the facts and circumstances of thecase the ITAT was justified in law in deleting theaddition of Rs.3,43,625/- out of addition ofRs.5,00,000/- made on account of unexplainedinvestment in construction of house at 115, CentralSchool Scheme, Jodhpur? [5] Whether on the facts and in the circumstances ofthe case the ITAT was justified in law in directing theAO to ignore the statements recorded at the time ofsearch in respect of surrender made with referenceto incriminating documents, while setting aside forfresh consideration the addition of Rs.48,880/-? [6] Whether on the facts and in the circumstances ofthe case the ITAT was justifiedin law inaltogether ignoring the circumstantial evidence anddeleting the addition of Rs.5,62,000/- made onaccount of undeclared payments made for thepurchase of immovable property? [7] Whether on the facts and in the circumstances ofthe case the ITAT was justified in law in deleting theaddition of Rs.87,000/- made on account ofunexplained credit and interest thereon, inspite ofthe fact that the creditor had not been proved by theassessee?” Learned counsel for the Revenue urged that all thesevenquestions asked for reference involves a question of law thus Tribunalought to have referred those questions to the High Court for its answer.It was thus submitted that the High Court should call for reference ofthose seven questions by issuing appropriate order to the ITAT. Theground for seeking reference was also argued by stating that meredisclosure of gold and silver ornaments, investment in construction ofhouse in Wealth Tax return for assessment year 1991-92 was notenough in the facts and circumstances of the present case particularlywhen the assessment was also open for a scrutiny while computing theblock assessment year. The Tribunal had infact deleted the addition ofRs.3,43,625/- on protective basis. It was lastly urged that undeclaredincome made for the purpose of immovable property was wronglydeleted though the addition was based on informations. It was thusprayed that looking to the legal issue involved in the present case all theissues involving the question of law needs to be call for reference. Per contra, learned counsel appearing for the assesseesupported that the order of the Tribunal and stated that reference wasrefused by the Tribunal on proper ground thus without there being anylegal issue involved in this case, calling for reference from the Tribunalwould not be proper. We have considered the rival submissions of the parties andperused the record. So far as the first four questions are concerned, those questionspertains to unexplained investment in the silver and gold ornaments andunexplained investment for construction of house No.115, CentralSchool Scheme, Jodhpur. The substantive addition of all theinvestments were made in the case of Jethmal Boob which was aseparate and individual appeal filed before the Tribunal followed by areference application mode before the Tribunal under Section 256 [1][E] of the Income Tax Act, however, in the case of Jethmal Boob alsolearned Tribunal had refused to make any reference while deciding thesimilar issue. It was found that all the questions asked for referenceare based on facts and finding recorded by the Tribunal were afterconsidering material placed on record and also with proper appreciationof facts, therefore, no question can be referred based on finding of factsor needs reappreciation of the facts already taken note of in appeal. It isnot a case where the Tribunal had failed to consider the materialavailable on record or passed an order without appreciating thedocuments. Thus we are of the view that a question cannot be askedfor reference of the High Court purely for reappreciation of findings andagainst the finding recorded by the Tribunal. The Fifth question asked for reference is in regard to the addition of Rs.43,880/- by the Assessing Officer. The Appellate Tribunal hasrecommended the same for fresh examination before the AssessingOfficer. Thus it cannot be said that any question of law arises onaccount of setting aside the matter for re-examination. Infact theCompetent Authority can re-examine the matter and will takeappropriate view, hence for such a direction no question of law is madeout for reference. So far as question No.6 is concerned, the same is regardingdeletion of addition of Rs.5,62,000/- regarding undeclared payment forpurpose of immovable property. This addition was not found to be onthe basis of any information or incriminating document at the time ofsearch and seizure. The additions were based purely on the inferencesof the Assessing Officer. The said issue has otherwise been decided bythe various benches of the Tribunal thus in those circumstances we donot find it to be a referable question. More so when nothing is found onrecord to show that there exist any incriminating document orinformation on the basis of which addition can be made. The last question is regarding addition of Rs.87,000/- on accountof unexplained credit interest thereon. The said amount was deleted bythe Appellate Tribunal on the ground that credit in question was dulymentioned in regular books of accounts and thereby regular books ofaccounts being outside the scope of assessment of undisclosed income under Chaper XIV B of the Income Tax Act after the insertion ofexplanation under Section 158 of the Income Tax Act and thus aquestion asked for reference in that regard cannot be said to involve aquestion of law. In view of the discussions made above, we do not find anyquestion involves questions of law for our reference. Mainly issuesraised by the Revenue for our reference are based on finding of fact orneeds reappreciation of finding. Other issues are already settled thusin that circumstances it cannot be said that Revenue has made out anycase for asking for any questions for our reference. In thesecircumstances, application preferred by the Revenue for seekingreference is found without merit. Hence the same is dismissedaccordingly. J. In view of the discussions made above, we do not find anyquestion involves questions of law for our reference. Mainly issuesraised by the Revenue for our reference are based on finding of fact orneeds reappreciation of finding. Other issues are already settled thusin that circumstances it cannot be said that Revenue has made out anycase for asking for any questions for our reference. In thesecircumstances, application preferred by the Revenue for seekingreference is found without merit. Hence the same is dismissedaccordingly. J. , J. MAMTA