M.B. Sharma, J. - (1.) THIS is an application under Section 256(2) of the Income-tax Act, 1961 (for short "the Income-tax Act"), wherein it has been prayed by the Revenue that its application under Section 256(1) of the Income-tax Act had been dismissed by the Rajasthan Income-tax Appellate Tribunal, Bench 'A' (Camp at Jaipur), and that this court should direct the said Tribunal to draw up the statement of the case and refer the following question of law for the opinion of this court : "Whether, on the facts and in the circumstances of the case, the Tribunal was justified in dismissing the appeal ?"
(2.) THE relevant facts to decide the present application are these : Against the order dated June 21, 1980, of the Appellate Assistant Commissioner of Income tax, A Range, Jaipur, an appeal was preferred before the Tribunal on behalf of the Revenue, which appeal was filed on September 10, 1980. Along with the appeal, a certified copy of the order of the Appellate Assistant Commissioner was not filed, but a copy of the judgment of the Appellate Assistant Commissioner certified by the Income-tax Officer was filed. THE Assistant Registrar intimated the Revenue, the appellant before the Tribunal, that it was required under the rules that the original order of the Appellate Assistant Commissioner should have been filed and 10 days' time was allowed and within 10 days' time, the order was filed. THE Tribunal examined the matter and, under its order dated May 25, 1981, disposed of the appeal along with other appeals and dismissed the same. An application was also filed on behalf of the Revenue and the Tribunal declined to make a reference. THE reason on which the Tribunal refused to make a reference was that the order of the Tribunal is based on material on record and the question which is sought to be referred becomes academic in nature. It is settled that when the question is sought to be referred "whether, on the facts and in the circumstances of the case", it has to be taken as stated in the order of the Tribunal which* are not challenged and, therefore, this court has to take the facts and circumstances as correct. If that be so, there can be no dispute that, when the appeal was filed before the Tribunal, it was not accompanied by a certified copy of the order of the Tribunal. Under Rule 9(1) of the Income-tax (Appellate Tribunal) Rules, 1963 (for short "the Rules"), every memorandum of appeal shall be in triplicate and shall be accompanied by two copies (at least one of which shall be a certified copy) of the order appealed against, two copies of the order of the Income-tax Officer, two copies of the grounds of appeal before the first appellate authority and two copies of the statement of facts, filed before the said appellate authority. There is no dispute that, along with the memorandum of appeal, a certified copy of the order Of the Appellate Assistant Commissioner was not annexed. There is no dispute that the Tribunal, in exercise of its discretion, did not accept the memorandum of appeal which, as said earlier, was not accompanied by a certified copy of the order of the Appellate Assistant Commissioner. Therefore, the Tribunal, on the facts of this case which, as said earlier, have not been challenged, has held that no question arisen out of the order for reference of a question of law. Consequently, we find no case for reference and the application is hereby dismissed.;