G.G.SOHANI, J. - (1.)THIS is an application under section 256(2) of the Income -tax Act, 1961, hereinafter referred to as 'the Act'.
(2.)THE material facts giving rise to this application briefly are as follows : In the course of the assessment proceedings for the year 1978 -79, the assessee claimed that a sum of Rs. 40,000 deposited by him with Dena Bank was out of a sum of Rs. 50,000 which he had brought at the time when he migrated from Pakistan to India. The Income -tax Officer, however, held that the assessee could not prove the transfer of Rs. 50,000 from Pakistan to India. The Income -tax Officer, therefore, treated the amount of Rs. 40,000 as income from undisclosed sources. Aggrieved by that order, the assessee preferred an appeal before the Appellate Assistant Commissioner who held, after appreciating the material on record, that as the assessee had fulfilled all the conditions stipulated in the instructions issued by the Central Board of Direct Taxes in that behalf, the Income -tax Officer was wrong in treating the amount of Rs. 40,000 as income of the assessee from undisclosed sources. The Appellate Assistant Commissioner, therefore, deleted the addition of the amount of Rs. 40,000 made by the Income -tax Officer to the income of the assessee. Aggrieved by the order passed by the Appellate Assistant Commissioner, the Revenue preferred an appeal before the Tribunal. The Tribunal dismissed the appeal filed by the Revenue. Aggrieved by the order passed by the Tribunal, the Revenue submitted an application under section 256(1) of the Act for making a reference to this court. That application was rejected by the Tribunal. Hence, the Revenue has filed this application under section 256 (2) of the Act.
Having heard learned counsel for the parties, we have come to the conclusion that this application deserves to be dismissed. Learned counsel for the Revenue contended that the Tribunal erred in relying upon the additional evidence produced by the assessee before the Appellate Assistant Commissioner contrary to the provisions of rule 46A of the Income -tax Rules, 1962, framed under the Act. However, in the application under section 256(1) of the Act made by the Revenue before the Tribunal, the Revenue did not seek reference on the question as to whether the Tribunal was justified in relying upon the evidence produced before the Appellate Assistant Commissioner. The question which was sought to be referred was as follows :

'Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the conditions laid down in the circular issued by the Ministry of Finance (Department of Revenue and Insurance) have been fully satisfied by the assessee, when the declaration filed by the assessee before the Income -tax Officer categorically stated that he had no evidence available with him regarding his income -tax assessment in Pakistan ?'

(3.)IN this application before this court under section 256 (2) of the Act, the Revenue has prayed that the Tribunal be directed to refer the aforesaid question of law to this court. Therefore, that is the only question which is sought to be referred Now, the Tribunal has found that the conditions requisite for the applicability of the relevant circular were fulfilled in the instant case. This is a finding of fact and no question of law, as urged on behalf of the Revenue, arises out of the order passed by the Tribunal.