Om Prakash, J. - (1.) THIS is an application under Section 256(2) of the Income-tax Act, 1961, by the. assesses for asking the Tribunal to state the case on the following questions : " (i) Whether, on the facts and in the circumstances of the case, the Tribunal was right in drawing an adverse inference and in sustaining the addition of Rs. 39,200 on the finding that the assessee had failed to fulfil the undertaking to produce M/s. Chaman Lal Dalbir Singh notwithstanding the changed circumstances that the said dealer had shifted to Kashmir and failure of the authorities below to issue commission or summons for the examination of M/s. Chaman Lal Dalbir Singh for which the assessee had made specific request ? (ii) Whether, on the facts and in the circumstances of the case, the authorities below should not have issued summons to Delhi party specially when his address as well as his control licence was made known by the appellant and also because the appellant had agreed to bear all the expenses in this regard ? (iii) Whether, on the facts and in the circumstances of the case, the assessee could not have been said to have discharged his initial burden and whether the Income-tax Officer was justified in not summoning the parties concerned if he was not satisfied about the genuineness of the fixed deposit receipts ? (iv) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the above amount of Rs. 39,200 could be recorded as unexplained investment and added as income in the hands of the assessee and is there any material on record for such a finding ? (v) Whether the Tribunal was right in recording the finding that there was no evidence that the assessee's mother possessed jewellery and she had given jewellery to the assessee to the exclusion of other brothers and whether there is any material on record to score such a finding ? (vi) Whether the Tribunal was right in taking the view that the assessee had not proved the factum of sale of jewellery or had not produced any evidence in regard thereto and had failed to discharge the onus as the source from which the fixed deposits were purchased and whether for all these findings there is any material on record and whether the findings recorded by the Income-tax Appellate Tribunal are contrary to the evidence on record and are based on surmises and conjectures ? (vii) Whether, on the facts and in the circumstances of the case, the finding of the Tribunal that the sum of Rs. 39,200 being the investment in the name of the members of the family was income liable to assessment in the hands of the assessee as income from other sources and whether such findings are not contrary to the evidence on record and are, therefore, vitiated by irrelevant considerations ? "
(2.) THE assessee purchased certain fixed deposit receipts and he was called upon by the assessing officer to explain the investment made therein. THE case of the assessee was that he acquired jewellery from his mother on partition, the sale proceeds of which had been invested by him in fixed deposit receipts aggregating to Rs. 39,200. THE assessee had led evidence to explain the source of the investment but that evidence was disbelieved by the assessing officer. THE assessee appealed before the Commissioner but failed. Then the" assessee carried the dispute to the Tribunal. One of the reasons to disbelieve the assessee's case was that he failed to produce the purchasers, namely, M/s. Chaman Lal Dalbir Singh (hereinafter referred to as " the purchaser"), to establish the fact that he had sold jewellery to the purchaser and the sale proceeds had been invested in the fixed deposit receipts. The assessee had given an undertaking before the Tribunal that he would produce the purchaser before the assessing officer. Having acted upon this undertaking of the assessee, the Tribunal set aside the assessment order and remanded the case to the assessing officer with a direction that after giving an opportunity to the assessee to produce the purchaser, he shall make the assessment order afresh. The assessee failed to carry out the undertaking and to produce the purchaser before the assessing officer. The assessee addressed a letter (annexure VII to the instant application) to the assessing officer (pages 58-59 of the paper book) requesting that : "......Your good self your counterpart in Srinagar or in Delhi may enquire about it because the party has got Central Excise Registration and they must have been on their scroll, and they must have given you the correct address at Srinagar. We are ready to deposit the expenses on it."
(3.) NO summons were issued by the Income-tax Officer pursuant to the request of the assessee On these facts, learned counsel for the assessee urges that questions of law arise, inasmuch as the Income-tax Officer failed to issue summons to the purchaser to appear before him.;