R .K.GULATI,J. - (1.) These applications under s. 256(2) of the IT Act have been filed by the CIT, Allahabad which pertain to asst. yrs. 1981 -82 to 1985 -86. In all these applications a common question has been proposed which reads as under : 'Whether, on the facts and in the circumstances of the case, the ITAT was correct in law in confirming the order of the learned CIT(A) holding that income from sarrafa and sonari business belongs to M/s. Ram Sewak Bal AOP when no evidence was found during the course of search operation to substantiate it ?'
(2.) THE short controversy before the Tribunal was whether or not business in sarrafa and sonari carried on under the name and style of Ram Sewak Pyare Lal was that of the assessee assessed in the status of Association of Persons (AOP). The ITO was of the view that the said business belonged to one Ram Sewak Prasad as his individual business and the substantive assessment in respect of the income from that business was to be made in his hand. However, the income from that business also assessed in the hands of the AOP the respondent assessee as protective assessment. The assessee appealed to the CIT(A) for all the years in dispute. The Appellate Commissioner took a different view. He held that the income from the business in question was liable to be assessed in the hands of the AOP on substantive basis and he directed the ITO accordingly. On second appeal by the Revenue, the Tribunal affirmed the appellate order. The applications filed by the Revenue under s. 256(1) of the IT Act having been dismissed, these applications have been filed for a direction to the Tribunal to refer the aforesaid question for the opinion of this Court.
(3.) WE have heard learned counsel for the parties. Whether a business or the income arising therefrom belong to one person or the other, largely depends upon the facts of the case. In the instant case, the Tribunal had held that the business in the name of Ram Sewak Pyarelal was not the proprietary concern of Ram Sewak Prasad and on the contrary, it belonged to the assessee. In taking that view the Tribunal has taken into consideration the statement of Ram Sewak Prasad who was examined by the ITO and also the fact that the income from that very business in the immediately two preceding years was assessed in the hands of the assessee AOP. The Tribunal also took note of the fact that the Revenue had not brought any material on record to substantiate the view taken by the ITO. The suggestion that the order of the appellate could not have been affirmed in the absence of any material found during the search, in our opinion, is misleading. The Tribunal was concerned with the question whether the business in sarrafa and sonari belonged to one legal entity or the other. It was for the Revenue to have placed the necessary material and evidence in support of the case it had pleaded before the Tribunal. The Tribunal on appreciation of the material and the evidence that was placed before it has been found as a facts that the business belonged to the AOP and was owned by it. The Revenue failed to persuade the Tribunal to take a different view. The view taken by the Tribunal was a plausible one and is supported by the material on record. The decision of the Tribunal did not involve the consideration of any legal provision or documents, etc. It proceeds purely on appreciation of the evidence and the material that was placed before it in order to decide the question with which it was concerned. In our opinion, the order of the Tribunal is concluded by findings of fact and does not give rise to any question, muchless to a statable question of law. The applications are accordingly rejected. The assessee shall be entitled to its costs which we assess at Rs. 200.;