Rc/50/1999 Of P.ramachandra Gupta v. The Commissioner Of Income Tax Hyd

THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON’BLE SRI JUSTICE T.SUNIL CHOWDARY R.C.No.50 of 1999 ORDER:(Per the Hon’ble Sri Justice L.Narasimha Reddy) The Income Tax Appellate Tribunal, Hyderabad Bench,referred the following two questions to this Court, at the instance ofthe assessee, by name, Sri P.Ramachandra Gupta: 1. “Whether on the facts and in thecircumstances of the case, the Income TaxAppellate Tribunal was right in law in holdingthat jewellery to the extent of 55 tulas of goldseen at the time of the search on 31.10.1988 inthe premises of the assessee was assessablein the hands of the assessee as unexplainedu/s. 69 of the Income-tax Act, 1961, and thattoo in their entirety for the assessment year1989-90. 2. Whether on the facts and in thecircumstances of the case the finding of factthat jewellery to the extent of 55 tulas of gold isassessable in the hands of the assessee asunexplained is vitiated by non-consideration ofall the relevant facts and materials.” The facts, in brief, that gave rise to the reference are that thehouse of the assessee was searched by the officials of the IncomeTax Department, on 31.10.1988, and in addition to various items,136 tulas of gold in different forms, was found. The gold and otherrecovered articles were dealt with in the returns for the assessmentyear 1989-1990. The assessee submitted the details of ownershipof the gold items. After consideration of the evidence before him, theAssessing Authority passed order, dated 04.12.1992, granting the relief to the extent of 30 tulas of gold and the remaining 106 tulas ofgold has been treated as ‘unexplained investment’ in the hands ofthe assessee. In the appeal preferred before the Appellate Authority, theassessee got the relief to the extent of 36 tulas of gold. In the furtherappeal preferred by the assessee before the Tribunal, the relief tothe extent of another 15 tulas was granted. Thus, remained 55 tulasof gold as ‘unexplained investment’. It is in relation to the same, thatthe reference was made. Learned counsel for the applicant advanced extensivearguments, which are almost repetition of the arguments that wereadvanced before the Tribunal. He submits that the AssessingAuthority as well as Appellate Authority and the Tribunal did not takeinto account, the fact that 15 tulas of gold was held by the sister-in-law of the assessee and was given for remaking of the items, theassessee himself owned about 15 tulas of gold for himself, his twodaughters and a son, in all, owned 10 tulas, and 20 tulas was heldby late M.V.Subbamma, grandmother of the assessee. He contendsthat in the nature of things, it would be difficult to prove ownership,that too in favour of the members of the family. Learned Senior Standing Counsel for the Income TaxDepartment, on the other hand, submits that the Tribunal ought not tohave referred the questions, since they are totally factual in natureand hardly there exists any element of law in them. We have perused the orders passed by the AssessingAuthority, Appellate Authority and the Tribunal. Even from a perusalof the questions referred to this Court, it is evident that hardly there isany element of law in them. The question as to whether 55 tulas ofgold that has been seized during the search can be treated as assessable in the hands of the assessee, does not warrant anyanswer by this Court. Once the Assessing Authority did not acceptthe contention and treated the said quantity of the gold as‘unexplained investment’ and the finding has assumed finality withthe orders passed by the Appellate Authority and the Tribunal, it isnot possible for this Court to reopen it and act as a further AppellateAuthority. It is not even mixed question of fact and law. Thequestions of fact can also be the subject matter of reference, albeitrarely this is not such a case. assessable in the hands of the assessee, does not warrant anyanswer by this Court. Once the Assessing Authority did not acceptthe contention and treated the said quantity of the gold as‘unexplained investment’ and the finding has assumed finality withthe orders passed by the Appellate Authority and the Tribunal, it isnot possible for this Court to reopen it and act as a further AppellateAuthority. It is not even mixed question of fact and law. Thequestions of fact can also be the subject matter of reference, albeitrarely this is not such a case. Learned counsel for the assessee is not able to point out anyprovision of law or decided case, which enables his client to takeaway the quantity of the gold, referred to above, from the purview ofthe assessment. We, therefore, answer the questions against theassessee. The reference is accordingly answered. ____________________ L.NARASIMHA REDDY, J. ___________________ T.SUNIL CHOWDARY, J.