- (1.) This is a statement of a case submitted by the Income-tax Appellate Tribunal, Allahabad Bench, at the assessees instance, inviting this courts answer to the following question : Whether, on the facts and circumstances of this case, the appeal preferred before the Appellate Tribunal challenging the deletion by the Appellate Assistant Commissioner of the sum of Rs. 90,000 from the total computation of the income of the assessee was maintainable ?
(2.) During the assessment proceedings pending before the Income-tax Officer a question arose about the nature of a deposit entry of Rs. 90,000 in favour of one of the partners of the assessee-firm in the accounts of the firm and the Income-tax Officer held that it was income from undisclosed sources and included it in the assessable income of the assessee. The assessee preferred an appeal to the Appellate Assistant Commissioner, who, after obtaining a report from the Income-tax Officer, after further enquiry, held that the amount of Rs. 90,000 was not income from undisclosed sources and excluded it from the assessable income. The Commissioner of Income-tax, U. P., directed the Income-tax Officer to prefer an appeal from the order passed by the Appellated Assistant Commissioner and the Income-tax Officer preferred an appeal to the Tribunal. The appeal came up for hearing before the Tribunal first on December 15, 1955. The Income-tax Officer raised the question about the amount of Rs. 90,000 and another amount and the assessee replied to the contentions advanced by the Income-tax Officer on merits. The assessee did not contend at all that the appeal filed by the Income-tax Officer, even though at the instance of the Commissioner of Income-tax, was incompetent because it was against an order passed by the Appellate Assistant Commissioner on the basis of his own report submitted under the instructions of the Appellate Assistant Commissioner after further enquiry. The Tribunal did not go into the question whether the appeal was competent or not. After hearing the arguments of the Income-tax Officer and the assessee on merits it found itself unable to decide the questions without calling for a further report from the Income-tax Officer. Therefore, on December 15, 1955, it passed an order calling upon the Income-tax Officer to submit to it a report on certain points. While the Income-tax Officer was receiving evidence and considering the points on which his report was called for, the assessee applied to the Tribunal under section 66(1) for reference of certain questions said to be questions of law arising out of its order dated December 15, 1955. That application is not before us and we do not know what questions were sought by the assessee to be referred by the Tribunal to this court; all we know is that the application was made. While this application was pending, the Income-tax Officer submitted his report and the Tribunal took up the appeal for final orders on January 24, 1957. On that date it was contended on behalf of the assessee that the appeal was incompetent for the reasons given above. The Tribunal rejected this contention and held that the Income-tax Officer had jurisdiction to file the appeal at the instance of the Commissioner of Income-tax. It then went into the merits of the appeal and set aside the assessment order and directed the Income-tax Officer to make a fresh assessment. Thereafter, it took up the reference application and allowed it and decided to state the case of this court. Then it submitted the statement.
(3.) It is clear that the question of law that has been referred to this court by the Tribunal is a question of law said to arise out of the earlier order dated December 15, 1955. The application made under section 66(1) was for reference of a question arising out of that order because that was the only order passed by the Tribunal that existed when that application was made. The application could not possibly be for a reference of a question of law arising out of the order dated January 24, 1957, for the simple reason that that order did not exist on the date of that application.;