M.B. Sharma, J. - (1.) THIS is an application under Section 256(1) of the Income-tax Act, 1961, with the prayer that the Income-tax Appellate Tribunal, Jaipur Bench, Jaipur (for short, "the Tribunal"), be asked to state the case and refer the following questions of law for the opinion of this court: "1. Whether the Tribunal was justified in law in not setting aside the assessment and restoring to the lower authorities for providing opportunity to cross-examine Rao Bikram Singh whose statements are alleged to have been recorded by the Income-tax Officer and have been used against the assessee ? 2. Whether the Tribunal was right in law in dismissing the appeal when stamped receipts for repayment of loan and interest (four) duly signed by Rao Bikram Singh were furnished, affidavit of Shri Chiranji Lal Chaudhary, son of Gopi Ram Choudhary, Finance Broker, Jaipur, dated August 22, 1981, was submitted and he was produced and cross-examined by the Income-tax Officer ? 3. Whether the Tribunal was right in law in holding that confirmation of Rao Bikram Singh has not been provided by the assessee during the course of assessment ? 4. Whether the Tribunal was legally justified in holding that the sum of Rs. 15,000 alleged to have been received from Rao Bikram Singh could be considered as unexplained and assessable under Section 68 of the Income-tax Act, 1961 ? 5. Whether, on the facts and in the circumstances of the case and in view of the material and evidence on record, the Tribunal was right in law in holding that the assessee has failed to discharge its onus under Section 68 of the Act and is not entitled to right of cross-examination when he has not filed confirmation during the course of assessment ? 6. Whether the Tribunal had material to hold that the credit of Rs. 15,000 to the account of Rao Bikram Singh through Shri C.L. Chaudhary on November 13, 1972, is genuine, remained unexplained and is the undisclosed income of the assessee ?"
(2.) S.L. Ganeriwal was the proprietor of M/s. Ganeriwal Industries, A-6, Industrial Estate, Jaipur. The original assessment under Section 143(1) of the Income-tax Act, 1961 (in short, "the Act), was completed on October 30, 1974, and the income of the assessee was assessed at Rs. 4,340. Subsequently, a notice under Section 148 of the Act was issued on November 21, 1980, after obtaining the necessary approval of the Commissioner of Income-tax, Jaipur, which was served on the assessee on November 27, 1980. In compliance with the said notice, the assessee filed a return on December 1, 1980, declaring an income of Rs. 4,340, i.e., the same sum on which he was assessed under order dated October 30, 1974. The assessing authority, under its order dated March 1, 1985, for the assessment year 1974-75, framed the assessment order and the total taxable income was shown to be Rs. 19,570. It appears that a sum of Rs. 15,000 was added to the income of the assessee from undisclosed sources. The said amount of Rs. 15,000 is said to have been deposited in cash by Rao Bikram Singh with the assessee and not through cheque. The assessing authority, under the aforesaid order of assessment, came to the conclusion that the assessee had failed to discharge the burden of proving the genuineness of the deposit of Rs. 15,000. The burden was on him to prove the genuineness of the cash credit, but he failed to discharge the onus. The assessing authority came to the conclusion that the amount of Rs. 15,000 deposited in the assessee's books of account in the name of Rao Bikram Singh was his own money which he introduced in the name of Rao Bikram Singh. The petitioner preferred an appeal against the aforesaid order before the Commissioner of Income-tax who, under its order dated March 20, 1986, dismissed the appeal. The Commissioner of Income-tax held that the Income-tax Officer had specific information that the loan of Rs. 15,000 was only a hawala entry and not a genuine loan from Rao Bikram Singh and, therefore, reopening of the assessment under Section 148 of the Act was in accordance with law. The Commissioner of Income-tax further held that the assessing authority was justified in treating the sum of Rs. 15,000 as unexplained and as the assessee's income for the year. The assessee preferred an appeal before the Income-tax Appellate Tribunal, Jaipur Bench, Jaipur, and the Tribunal, vide its order dated June 25, 1987, in agreement with the Income-tax Officer and the Commissioner of Income-tax, said that the assessee had failed to discharge the burden that lay upon him to prove the genuineness of the cash credit entry. It was contended by Shri Kalia, learned counsel for the assessee, in this reference application that the assessee raised various questions before the Tribunal, viz., no opportunity to cross-examine Rao Bikram Singh on his statement alleged to have been made before the Income-tax Officer was afforded ; that the burden to prove stood discharged by the assessee by producing debit entries bearing the signature of Rao Bikram Singh under which the payment had been made to him ; and the broker through whom the transaction has taken place had been examined. But the Tribunal did not discuss the aforesaid arguments advanced. Therefore, the questions sought to be referred arise out of the order of the Tribunal. A bare reading of Section 256 of the Act shows that the jurisdiction of this court under the aforesaid section is a special jurisdiction which is neither appellate, revisional nor supervisory jurisdiction and only this court can order reference of questions of law which arise out of the order of the Tribunal. A question can be said to arise if it is raised before the Tribunal and has been dealt with by it. Even if it is not dealt with by it, but raised, it can be said that this question arises out of the order of the Tribunal. But the fact is that such questions having been raised, whether decided or not, must appear from the order of the Tribunal. A look at the order of the Tribunal will show that what was raised before the Tribunal was (1) that the prayer of the assessee to cross-examine Rao Bikram Singh was not allowed by the Appellate Assistant Commissioner, and (2) that confirmation was not provided by the assessee to the cash credit entry. Therefore, it can be said that the other questions which are sought to be referred by the assessee were not raised and were not dealt with before the Tribunal. Therefore, these questions cannot be said to arise or decided or not decided by the Tribunal, Under Section 68 of the Income-tax Act, 1961, where any sum is found credited in the books of an assessee maintained for any previous year, and the assessee offers no explanation about the nature and source thereof or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfactory, the sum so credited may be charged to income-tax as the income of the assessee of that previous year. Therefore, it is for the assessee to furnish an explanation in respect of any sum found credited in his books of account and, after considering the same, the assessing authority can come to the opinion as to whether the explanation is satisfactory or not. The question whether any cash entry is genuine or not is a question of fact and this has been the consistent view of this court arid other High Courts. In the case of Calicut Tea Mart, Tea Dealers and Commission Agents v. CIT 1989. 178 ITR 198 (Ker), the Tribunal held that the assessee was not able to prove the genuineness of cash credits and this being a finding of fact, no question arises for reference. In the case of Ramsing and Co. v. CIT 1984] 146 ITR 166, the Madhya Pradesh High Court took the view that the finding of the Tribunal that the cash credits appearing in the name of a party had not been proved to be genuine is a finding of fact and no question of law arises from the order of the Tribunal for reference to the High Court. In Jainarain Jeevraj v. CIT [1980] 121 ITR 353, this court held that where a cash credit had been added to the income of the assessee and the Tribunal found that the amount represented income from undisclosed sources, no question of law arises. The Delhi High Court in CIT v. Orient Enterprises [1990] 185 ITR 156, was dealing with a case which the Tribunal referred. The court held that the conclusion of the Tribunal was perverse. The question as to whether the cash credits were genuine or not was a pure question of fact and no question of law arose. It can, therefore, be said that the question whether the cash entries in the account books maintained by the assessee are genuine or not is a question of fact and is not a question of law for which a reference can be made to this court. We have stated earlier that there is no dispute that a sum of Rs. 15,000 has been deposited in cash. The Tribunal taking this fact into consideration recorded a finding in agreement with the assessing authority as well as the Appellate Assistant Commissioner that the assessee has failed to prove the genuineness of the cash entries the onus for which was placed on him. We are of the opinion that the question as to the genuineness of cash credit is a question of fact and is not a question of law and no question arises for reference. Consequently, we hereby dismiss the application under Section 256 of the Act with no order as to costs.;