N.D.OJHA, J. - (1.) THIS is an assessee's application under S. 256(2) of the IT Act, 1961 (hereinafter referred to as the Act) for a direction to the Tribunal, Delhi Bench C (SMC), Delhi to draw up a statement of the case and refer the question of law mentioned in this application. A perusal of the appellate order passed by the Tribunal indicates that certain authorities of the Gujarat High Court and of this Court were cited before it is regard to the burden of proof consequent upon the insertion of the Explanation to s. 271(1)(c) of the Act but the Tribunal preferred to rely on the view of this Court. In CIT vs. Vindeshwari Trading Corporation 1978 CTR (All) 110 : (1978) 113 ITR 791 (All) a Division Bench of this Court held that when there were conflicting decisions of High Courts and there was no decision of the Supreme Court on the point it cannot be said that no stable question of law arises. We are accordingly of opinion that it is fit case where the Tribunal may be required to refer the following question to this Court for its opinion : "Whether the Explanation to S. 271(1)(c) of the IT Act, 1961 has the effect of overriding the decision of the Supreme Court in CIT and Anr. vs. Anwar Ali (1970) 76 ITR 696 (SC) and even after the aforesaid Explanation being added the burden lies on the Revenue to establish that the amount added in the assessment proceedings was the income of the assessee for the assessment year in question.
(2.) THIS application is accordingly allowed in part and the Tribunal aforesaid is directed to draw up a statement of case and refer the aforesaid question of law to this Court for its opinion. The application in regard to the other question mentioned therein is, however, dismissed. In view of their divided success the parties shall bear their own costs.;