- (1.)THIS application has been moved by the Commissioner of Income-tax, Jaipur, under s. 256(2) of the I.T. Act, 1961, for directing the Income-tax Appellate Tribunal, Jaipur Bench, Jaipur (hereinafter referred to as the Tribunal, to draw up a statement of case and refered to this court for opinion the following questions mentioned in para. 4 of the said application
Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deletion the addition of Rs. 48,479

(2.)WHETHER, on facts and in the circumstances of the case, the Tribunals finding that the Department has failed to substantiate its finding that Shri Harish Chandra was benamidar of the assessee is perverse and contrary to the material on record
Briefly stated, the facts are that while completing the assessment of Shri Ramniwas, non-petitioner (hereinafter referred to as the assessee), the ITO included a sum of Rs. 48,479 in the total income of the assessee on the ground that the said income earned by Harish Chandra, son of the assessee, was so earned by him as benamider of the assessee. The AAC sustained the said order made by the ITO. The Tribunal, by its order dated June 13, 1980, deleted the said addition on the view that the Revenue had failed to substantiate that Harish Chandra is a benamidar of the assessee. According to the Tribunal, Harish Chandra was major when he entered into the transactions in question and he had made advances out of his withdrawals from the bank accounts of the two firms in which he was admitted to the benefits of partnership earlier. According to the Tribunal., the mere fact that Harish Chandra was 18 years old and was a student count not oblige them to confirm the finding recorded by the AAC. Feeling aggrieved by the order passed by the Tribunal, the Commissioner moved an application before the Tribunal under s. 256(1) of the I.T. Act for referring to this court the questions mentioned above. The Tribunal by its order dated November 21, 1980, rejected the said application for the reason that no question of law arose from the order of the Tribunal dated June 13, 1980. The Tribunal held that a finding of fact was given by the Tribunal and it could not be said that the said finding of the Tribunal was preverse and contrary to the material on record. Thereupon the Commissioner has moved this application under s. 256(2) of the I.T. Act.

We have heard Shri R. N. Surolia, the learned counsel for the Revenue. The assessee has failed to appear even though duly served.

From a perusal of the question which are sought to be referred, it may be seen that both the questions relate to the finding on the question as to whether Shri Harish Chandra was the benamidar of the assessee. The law is well-settled that a finding on the question as to whether a particular transaction was a benami transaction, is a finding of fact, In this connection reference may be made to the decision of the Supreme Court in Sree Meenakshi Mills Ltd. v. CIT, 1957 31 ITR 28(SC) . In that case the Supreme Court, after examining the case law on the subject, has held that when the finding is one of fact, the fact it itself an inference from other basis facts, will not alter its character as one of fact. In the said case the Supreme Court has also observed that a finding of benami was one of fact. In view of the aforesaid decision of Supreme Court there can be no doubt that the finding recorded by the Tribunal that Harish Chandra could not be regarded as benamidar of the assessee in relation to the transaction of purchase land sale of 291 bags of sarson is a finding of fact. Since the said finding recorded by the Tribunal cannot be regarded as perverse, or contrary to the record, no question of law arises out of the order dated June 13, 1980, passed by the Tribunal. There is thus no merit in this application and the same is accordingly dismissed with no order as to costs.