Shyamal Kumar Sen, J. - (1.) The facts, inter alia, leading to this reference as appears from the statement of case are as follows : The assessee is an individual. Shipping Bill No. AEP 235, dated January 6, 1973, relating to two packages, on account of the State Trading Corporation of Sikkim, was presented at the Calcutta Airport along with two cases booked under Air Way Bill No. 061-11947854 for shipment by BOAC against shipping documents. The customs authorities had reason to suspect that the packages contained articles other than those described in the shipping bill. On June 8, 1973, the packages were opened in the presence of the assessee and they were found to contain a bronze idol of Nataraja and its pedestal whereas the description of the packages was as "unaccompanied personal effects of His Majesty the Chogyal B. T. Namgyal of Sikkim." The statement of the assessee was recorded. The assessee testified under his signature that it was done by him as a representative of the State Trading Corporation of Sikkim. On examination of various documents and the papers, the Customs authorities were of the opinion that the assessee was the person who had booked the aforesaid packages for shipment to New York, U.S.A. Prosecution proceedings were accordingly initiated against the assessee and though the assessee pleaded guilty, the court sentenced him to simple imprisonment for one year with effect from August 9, 1975. Subsequently, the assessee pleaded that he had acted on behalf of His Majesty, the Chogyal of Sikkim and produced a xerox copy of the letter dated June 4, 1973, indicating that the idol and its pedestal belonged to the Chogyal. The Income-tax Officer was not satisfied because no original letter was produced before him to this effect and the Income-tax Officer further found that the assessee was not able to prove that he was not the actual owner of the idol arid the pedestal which were found in the packages under his signature. Consequently, the Income tax Officer added a sum of Rs. 80,000 being the value of the idol and its pedestal under Section 69 of the Act in the total income of the assessee.
(2.) The assessee preferred an appeal before the Commissioner of Income-tax (Appeals) and contended that the real owner of the articles was His Majesty the Chogyal of Sikkim and that the articles were being discharged under his order from the State Trading Corporation of Sikkim, which was represented by the assessee. It was also contended that the idol and its pedestal belonged to His Majesty the Chogyal of Sikkim, who was enjoying immunity and, therefore, no action could be taken against him. The Commissioner of Income-tax, relying on the decision in J.S. Parkar v. V.B. Palekar [1974] 94 ITR 616 (Bom), deleted the addition of Rs. 80,000. The Department preferred an appeal before the Tribunal against the said decision of the Commissioner deleting Rs. 80,000 from the total income of the assessee. The Tribunal held, inter alia, that the idol and its pedestal were found in the possession of the assessee, and as such, their ownership can be presumed safely as that of the assessee unless the same presumption is rebutted. It was also; inter alia, held by the Tribunal that the assessee did not produce any evidence to show as to how the idol and its pedestal were found in his possession from Sikkim to Calcutta. The other aspect which was considered by the Tribunal was that the assessee knew that the idol and its pedestal were being sent out of India without taking specific permission from the Government of India. Therefore, the assessee was doing some illegal deal which was not permissible under the law of the land, and, as such, the Tribunal accordingly allowed the appeal by the Department and set aside the order of the Commissioner of Income tax (Appeals) and the order of the Income-tax Officer was restored. The assessee thereafter preferred an application under Section 256(1) and required the Tribunal to refer certain questions for determination by this court. The said questions are set out hereinbelow : "(1) Whether there was any cogent material before the Tribunal to hold that the assessee was the owner of the bronze Nataraja idol and its pedestal and was liable to be assessed on the value thereof under Section 69A of the Income-tax Act, 1961? (2) Whether, on the facts and in the circumstances of the case, the finding of the Tribunal that the assessee was the owner of the idol 'and its pedestal were vitiated by reason of the fact that in arriving at such finding the Tribunal ignored the relevant evidence and considerations and relied on irrelevant evidence and considerations, conjectures, surmises and suspicions ? (3) Whether, on the facts and in the circumstances of the case, the assessee discharged his initial burden of proving that His Majesty the Chogyal of Sikkim and/or his Majesty's State Trading Corporation of Sikkim at Calcutta was the owner of the idol and its pedestal and the burden shifted to the Revenue to prove otherwise ? (4) Whether, on the facts and in the circumstances of the case, the inference drawn by the Tribunal that the assessee could not explain properly that the idol and its pedestal did not belong to him but belonged to His Majesty the Chogyal of Sikkim was drawn in a state of confusion and was perverse ? (5) Whether, on the facts and in the circumstances of the case, the Tribunal was right in throwing the burden upon the assessee to prove that he was not the owner of the idol and its pedestal when admittedly the consignee of the antiques was His Majesty the Chogyal of Sikkim and the consignor was His Majesty's State Trading Corporation at Calcutta and the assessee was an employee of His Majesty employed as representative of the State Trading Corporation at Calcutta ? (6) Whether, when the Commissioner of Income-tax (Appeals) accepted the photostat copy of the letter dated June 4, 1973, of the Chogyal of Sikkim addressed to the Collector of Customs, Calcutta, the onus shifted to the Revenue for the production of the records of the Collector of Customs and disprove the letter? (7) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the question of immunity of the Ruling Monarch of Sikkim did not arise when His Majesty was not in appeal against the assessment made by the Income-tax Officer? (8) Whether the assessee being the representative of the State Trading Corporation of Sikkim could not be held liable to income-tax in respect of the value of the idol and its pedestal when His Majesty Chogyal of Sikkim himself was not liable under the international law and jurisprudence ?"
(3.) The Tribunal, however, held that the following question will cover all the questions suggested by the assessee and, accordingly, the same is referred to the Hon'ble High Court at Calcutta for its esteemed opinion : "Whether, on the facts and in the circumstances of the case, the Tribunal was justified in confirming the addition of Rs. 80,000 being the value of the Nataraja idol and its pedestal ?";