Commissioner of Income Tax vs Manakchand Poonamchand

A.R. Tiwari, J.—The Commissioner, Bhopal, has filed this application u/s 256(2) of the income tax Act, 1961 (''the Act'') seeking direction to the Tribunal to state the case and refer the undernoted questions, categorised as of law, arising out of the order dated 7-7-1994 passed by the Tribunal in IT Appeal Nos. 466 and 335 (Ind.) of 1994 after rejection of the applications on 12-12-1994 registered as RA Nos. 86 and 87/(Ind. of 1994) for the assessment year 1990-91. RA No. 86 (Ind.) of 1994:

Whether on the facts and in the circumstances of the case, the Hon''ble Tribunal is justified in law in holding that the credit of Rs. 98,100 appearing in the assessee''s books of account in the name of one Shri Ganesh Shivaji is genuine ?

R.A. No. 87 (Ind.) of 1994:

Whether on the facts and in the circumstances of the case, the Hon''ble Tribunal is justified in law in holding that three credits aggregating to Rs. 1,63,514 appearing in the assessee''s books of account in three names are genuine ?

Briefly stated, the facts of the case are that in the course of assessment proceedings, credits in four names amounting to a total of Rs. 2,61,614 were noticed in the books of account. The four creditors Ganesh Shivaji jagannath Bechor, Pyarelal Shaznkar lal and Daulayasingh raghunathsingh are agriculturists. Ganesh Shivaji Died before enquiries were made in the case. His son responded to the enquiries made by the Assessing Officer, the Assessing Officer, after due opportunity, concluded that four credits in question represented unexplained expenditure liable to be added to the total income and made the assessment accordingly. In appeal the Commissioner (Appeals) confirmed the additions insofar as the credits J relating to creditors Jagannath Bechor, Pyarelal Shankarlal and Daulayasingh Raghunathsingh were concerned, but deleted the credit relating to late Ganesh Shivaji represented by his son Narayan. The assessee filed the appeal before the Tribunal with regard to dismissal of the appeal of the cash-credits relating to the aforesaid three alleged creditors whereas the Department filed the appeal so far as deletion of credit relating to Ganesh Shivaji was concerned. The Tribunal allowed the appeal of the assessee and dismissed the appeal of the Department. The Department then filed the applications u/s 256(1) of the Act which were dismissed. thereafter, the Department has filed the application u/s 256(2).

We have heard Shri A.M. Mathur, the learned Sr. counsel with Shri A.K. Shrivastava for the applicant and Shri G.M. Chaphekar, the learned Sr. counsel with Shri Samvatsar and Shri Sharda for the non-applicant.

The Tribunal, on the aforesaid two applications u/s 256(1) declined to state the case and refer the questions holding as under :

The finding that the credits were genuine is a finding of fact based on appreciation of the evidence brought on record. That finding, in our opinion, does not give rise to a question of law. We, therefore, refuse to grant the reference.

The applicant has not proposed any question to the effect of any perversity in the conclusion reached by the Tribunal. It cannot be gainsaid that the conclusion reached by the Tribunal is based on appreciation of fact and as such, is only a finding of fact. This finding is not shown to be perverse or infirm. No such question is projected or presented. No argument on this line is advanced.

The result is that the conclusion reached by the Tribunal is based on appreciation of facts.

In Commissioner of Income Tax (Central), Calcutta Vs. Ashoka Marketing Ltd., and Commissioner of Income Tax, Andhra Pradesh Vs. Kotrika Venkataswamy and Sons, , it is held that conclusion based on appreciation of fact does not give rise to any question of law.

In view of the aforesaid position, we are satisfied that this application does not involve any referable question of law. In the result, the application is held to be devoid of merit and is, accordingly, dismissed with no orders as to costs. The counsel fee for either side is, however, fixed at Rs. 750, if certified.