N.D.OJHA, J. - (1.) THE CIT, Delhi (Central) -1, New Delhi, has aggrieved by the order of the Income -tax Appellate Tribunal, Delhi Bench D, Delhi, dismissing his application under s. 256(1) of the IT Act, 1961, hereinafter referred to as the Act, in regard to the assessment of the opposite party for the asst. yr. 1971 -72, made this application under s. 256(2) of the Act with a prayer that the Tribunal may be directed to refer the twelve questions mentioned in the application to this Court for its opinion. Question No. 4 as stated in this application reads as under : '4. Whether, on the facts and in the circumstances of the case, the Tribunal is correct in law in holding that the reopening of the case under s. 147(b) of the Act is not valid ?' Keeping in view the nature of the remaining eleven questions, it is apparent that only if it is held that question No. 4 is a question of law arising out of the appellate order of the Tribunal that the remaining question will need consideration. On the other hand, if it is held that the said question No. 4 does not arise out of the appellate will be only of academic value.
(2.) AS regarding question No. 4, having heard, by the counsel for the parties, we are of the opinion that the said question is not a question of law arising out of the appellate order of the Tribunal. In this connection the Tribunal has recorded a categorical finding : 'We find that the reopening of the matter under s. 147(b) was on the basis of no information whatsoever and, therefore, have no hesitation in holding that reopening of matter under s. 147(b) was not valid.' The legal position is obvious that existence of the information as contemplated by s. 147(b) is a condition precedent for initiating action under the said section. The finding that there was no information whatsoever on the basis of which action under s. 147(b) could be initiated is apparently a finding of fact. It this finding was sought to be challenged on the ground that it was perverse of arbitrary inasmuch as even though there was information the same has been ignored by the Tribunal, the question sought to be referred to this Court should have been framed accordingly. In the instant case, however it has not been so done. It was urged by the counsel for the application that the question as framed is wide enough to include the question that the finding of fact recorded by the Tribunal is vitiated in as much as there was information, but the same has been ignored by the Tribunal. According to counsel for the applicant the finding recorded by the Tribunal was really in the nature of a legal inference drawn from the reasons recorded earlier. Keeping in view the nature of the finding recorded by the Tribunal we find it difficult to agree with this submission. In this view of the matter we are of the opinion that question No. 4 cannot be said to be a question of law arising out of the appellate order of the Tribunal. That being so the remaining question mentioned in this application are, in view of what has been stated earlier, question of academic importance in so far as this case is concerned.
(3.) IN the result this application fails and is cross dismissed; but, there shall be no order as to costs.;