TMI Blog1995 (4) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... to 199, all of 1991 and 280 of 1991 (Harbanslal Gupta, in all cases) as they arise out of the same proceedings of search and seizure conducted jointly by the Income-tax Department and the Central Excise Department. The applicant in all cases is the Commissioner of Income-tax, while the non-applicants in these cases are as indicated above in brackets. In all the cases, the applications for making reference of certain questions of law, proposed by the Department, have been refused by the Income-tax Appellate Tribunal. The Department has, therefore, claimed reference of those questions by invoking the jurisdiction of this court under section 256(2) of the said Act. Before considering the questions sought to be referred by the Department, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deletion made by the Commissioner of Income-tax (Appeals). The Department then made an application for reference under section 256(1) of the said Act and proposed 11 questions as follows for being referred to this court : " 1. Whether, on the facts and circumstances of the case, the Income-tax Appellate Tribunal was justified in holding that the 14 gold biscuits belonged to Smt. Bachan Devi Gupta, mother of the assessee ? 2. Whether, on the facts and circumstances of the case, the Tribunal was justified in holding that 250 tolas of gold biscuits belonged to Smt. Bachan Devi Gupta, mother of the assessee ? 3. Whether, on the facts and circumstances of the case, the Appellate Tribunal was justified in holding that 7 Kg. of impure silv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was justified in relying on the statement of Smt. Sudarshan Gupta, in respect of the capital built-up when there was no evidence to support the same ? 11. Whether, on the facts and circumstances of the case, the Appellate Tribunal was justified in deleting the addition made on account of money-lending business as found from the hundi khokas ?" It may be mentioned that same questions are sought to be referred in the cases M. C. C. No. 222 of 1991 and M. C. C. No. 220 of 1991, concerning the assessee, Harbanslal Gupta and M. C. C. No. 221 of 1991, concerning the assessee's wife, Smt. Sudarshan Gupta. In relation to the said proceedings of search and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to him and the explanation as regards gold and silver to be belonging to the two lady members of the family should not have been accepted without cogent reasons for the same. Reliance is placed on the Supreme Court decisions in Chuharmal v. CIT [1988] 172 ITR 250 ; CIT v. Kilco Refrigeration [1990] 183 ITR 318 (Ker) and CIT v. K. Mahim [1988]174 ITR 149 (Ker). Learned counsel, appearing for the assessee in all the cases, Shri O. P. Agrawal, contended that the questions posed for answer by this court even prima facie are not questions of law. According to him, whether the explanation offered by the assessee, Harbanslal Gupta, and his female relatives was liable to be accepted or not was a question decided on the facts and circumstances of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) to refer only those questions which fall within the ambit of sub-section (1). See New Jehangir Vakil Mills Ltd. v. CIT [1959] 37 ITR 11, 19 (SC). All questions of fact are for the Tribunal to decide and this court, whose advisory jurisdiction alone can be invoked under section 256, cannot go behind the Tribunal's findings of fact. It is true that where a mixed question of law and fact arises, a reference of such questions can be claimed to be directed to be made, but such mixed questions would become questions of law only if the decision thereof involves application of any principle of law. Where the final determination of that question does not involve the application of any principle of law, an inference from given circumstances and th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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