S.C. Sen, J. - (1.) The assessee has made application for reference on the following questions of law under Sec. 256(2) of the Income -tax Act, 1961 ('the Act'): 1. Whether the findings of the Tribunal that - (a) There is no indication as on what materials or facts the Commissioner (Appeals) has come to the finding that there can be no dispute that 30 per cent debt was bad; (b) The details of the calculation made by the expert Chartered Accountants G. Basu & Co. for arriving at such conclusion appear to have not been examined or considered by either of the authorities below; (c) There is no indication, whether the accounts, etc., of the debtor, company were examined; and (d) The facts and materials available are not adequate to decide the disputes finally are patently perverse being inconsistent with and contradictory of the evidence on record, and are otherwise unreasonable? 2. Whether, on facts and in the circumstances of the case, the Tribunal was right in holding that the matter should be disposed of afresh by the Income - tax Officer for the third time? 3. Whether, on the facts and in the circumstances of the case, the disposal of the appeal by the Tribunal was valid and lawful? 4. Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in not dismissing the appeal by upholding the order appealed against? The relevant accounting period is the year ended on 30 -6 -1974, the assessment year is 1975 -76. The assessee had a claim of Rs. 82,88,582 against Oriental Coal Company, a colliery company, for which the assessee was acting as selling agent. The assessee wrote off a sum of Rs. 24,86,574 in its accounts for the year ended 30 -6 -1974 as bad debt. This was done, according to the assessee, on the advice of its Chartered Accountant. After various proceedings, ultimately the ITO disallowed the claim. The Commissioner on appeal, allowed the claim of bad debt. On further appeal, the Tribunal remanded the case back to the ITO. The Tribunal, in particular, was of the view that there was no indication as on what material the Commissioner (Appeals) had come to the finding that there could be no dispute that 30 per cent of the debt was bad. The Tribunal was also of the view that the details of the calculation made by G. Basu & Co., Chartered Accountants, had not been examined or considered by the ITO or the Commissioner (Appeals). There was no indication whether the accounts of the debtor -company were examined to find out whether the debt was recoverable. The Tribunal was also of the view that the facts and materials brought on record were not adequate to decide the dispute finally.
(2.) Aggrieved by this decision of the Tribunal, the assessee has sought for reference of the questions of law set out hereinabove to this Court. The Tribunal rejected the application and the assessee has come up by the way of an application under Sec. 256(2) before this Court for directing the Tribunal to refer the questions to this Court.
(3.) It is well -settled that whether a debt is a bad debt and in what year it became bad are questions of fact and the findings of the Tribunal on these questions cannot be disturbed by the Court unless it is a perverse finding or the Tribunal had misdirected itself in law in coming to its conclusion - Bank of Bihar Ltd. v/s. CIT : [1962] 45 ITR 427 (SC). It is also well -settled that the onus lies on the assessee to prove that a debt or a portion of debt has become irrecoverable in the relevant accounting year. The Tribunal has not been satisfied on the evidence placed before it about the allowability of the claim of the assessee. It has remanded the case for further investigation into the facts. If the Tribunal is of the view that the matter should be further investigated, the Court cannot intervene and prevent the Tribunal from passing such an order. Dr. Pal, on behalf of the assessee, has argued that the Tribunal has expressed an opinion that the events that have taken place after the relevant year of account could not be taken note of by the ITO for the purpose of determining whether the debt has become bad in a particular year. That, according to Dr. Pal, is a question of law that should be referred to this Court.;