ARORA, J. - (1.) THE Revenue, by this application moved under S. 256 (2) of the IT Act, 1961 ('the Act') with respect to the asst. yr. 1984-85 of the assessee, has prayed that the Tribunal, Jaipur Bench, Jaipur, may be directed to refer the following question of law for the opinion of the High Court: " Whether, on the facts and in the circumstances of the case, it is not case of unreasonable, perverse and improper exercise of discretion by income-tax Tribunal while sustaining an addition of Rs. 10,000 only justiceable basis for the same in spite of being fully satisfied about the grossly defective position of accounts and non-acceptability on the declared Gross Profit rate of 16,77 per cent as correct and clearly ignoring comparable case of assessee's own brother Shri Jethmal Agrawas, proprietor Janta Sweet Home, Jodhpur, relied upon by the learned CIT (A) while confirming the gross profit of 23.5 per cent ?"
(2.) THE assessee, Prem Kumar Agrawal-the proprietor, Janta Misthan Bhandar, is an individual who derives his income from the preparation and sale of sweets. During the asst. yr. 1984-85, the assessee declared the gross profit of Rs. 2,07,309 on the sale of Rs. 12,36,148. As the gross profit's rate was declared at 16.77 per cent while in the earlier year the gross profit's was declared at the rate of 20 per cent, therefore, the ITO exercising his powers under the proviso to S. 145 (1) of the Act, estimated the gross profit of the assessee at 23.5 per cent. This estimated gross profit at the rate of 23.5 per cent resulted in the addition of Rs. 84,006. The assessee referred an appeal before the CIT (A), Jodhpur, and the CIT allowed the appeal in part and determined the gross profit at the rate of 20 per cent. The assessee dissatisfied with the order passed by the CIT (A), Jodhpur, preferred an appeal before the Tribunal, Jaipur Bench, Jaipur, and the Tribunal allowed the appeal filed by the assessee and maintained the addition of Rs. 10,000 only as against Rs. 84,006 made by the CIT (A), Jodhpur, by his order dt. 26th July, 1990. The Revenue thereafter moved an application under S. 256 (1) to refer the question, mentioned above, for the opinion of the High Court. The Tribunal refused to refer the question for the opinion of this Court on the ground that the findings arrived at by the Tribunal are purely findings of facts based on the material available on record as mentioned in the order and no referable question of law arises in the matter. Dissatisfied with the order dt. 9th April, 1991 passed by the Tribunal refusing to refer the question for the opinion of the this Court, this application under S. 256 (2) has been moved by the Revenue. We have considered the submissions made by the learned counsel for the parties and perusal the order passed by the Tribunal, both in the appeals as well as on the application under S. 256 (1) .
(3.) THE Tribunal after considering the various aspects of the case, looking to gross profit shown in the year in the case of the assessee itself, exercised the discretion and sustained the addition of Rs. 10,000 only against the added income of Rs. 84,006 made by the authorities. The exercise of the discretion in the present case cannot be said to be, in any way, arbitrary or unjust. It is in the facts and circumstances of the case that the Tribunal has sustained the addition of Rs. 10,000 only. There is nothing on record to show that the findings of fact arrived at by the Tribunal, are based on mis-application of any rule or law or are based on no evidence. The Tribunal has, also not ignored any material evidence while sustaining the addition of Rs. 10,000 against Rs. 84,006. The findings are based on the relevant consideration of the material and cannot be said to be, in any way, perverse. These are only the findings of fact and do not give rise to any question of law referable to the High Court.;