MUNISHWAR NATH BHANDARI,J. - (1.) REVENUE has preferred this reference application under the provisions of Section 256(2) of the IT Act, 1961 (hereinafter referred to as 'the Act of 1961'). The Income - tax Appellate Tribunal (hereinafter referred to as 'the Tribunal') refused to make reference under the order dt. 17th Feb., 1999.
(2.) A reference application was earlier filed before the Tribunal under the provisions of Section 256(1) of the IT Act, for reference of certain questions to this Court. It was arising out of the order dt. 25th Aug., 1998 in relation to the block period of 1986 -87 to 1996 -97. Following questions were sought for reference: (1) Whether on the facts and in the circumstances of the case, the Tribunal was justified in law in deleting the addition of Rs. 2,51,056 made as undisclosed income for asst. yr. 1991 -92 on account of unexplained investment in gold ornaments etc.? (2) Whether on the facts and in the circumstances of the case, the Tribunal was justified in law in deleting the audition of Rs. 8,45,525 made as undisclosed income for asst. yr. 1991 -92 on account of unexplained investment in silver articles? (3) Whether on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that, statement of the assessee regarding surrender on account of stock recorded at the time of search is to be ignored? (4) Whether on the facts and in the circumstances of the case, the Tribunal was justified in law in deleting the addition of Rs. 5.59 lakhs made on account of unexplained stock, on the basis of misconceived fact that surrender by assessee also refers to 'other miscellaneous documents' and that the differences were too meagre and deserved to be ignored? (5) Whether on the facts and in the circumstances of the case the finding of the Tribunal that the land sold by the assessee was agricultural land and that it was situated at distance of more than 8 kms. from the local limits of the municipality, etc. was not perverse being based on unproved facts? (6) Whether on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the transaction of sale of land at Doli was not in the nature of trade and thereby deleting the addition of Rs. 10,91,780? (7) Whether on the facts and in the circumstances of the case, the Tribunal was justified in law in altogether ignoring the circumstantial evidence and deleting the addition of Rs. 26.051 lakhs made on account of undeclared payments made for the purchase of various immovable properties? (8) Whether on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the statement of the assessee regarding surrender on account of unexplained investment in construction of house at 115 - Central School Scheme, Jodhpur, recorded at the time of search is to be ignored? (9) Whether on the facts and in the circumstances of the case, the Tribunal was justified in law in deleting the addition of Rs. 4,57,330 out of the addition of Rs. 5 lakhs made on account of unexplained investment in construction of house at 115 -Central School Scheme, Jodhpur? (10) Whether on the facts and in the circumstances of the case, the Tribunal was justified in law in deleting the addition of Rs. 58,57,400 made on account of unexplained investment in purchase of land at Pali road? (11) Whether on the facts and in the circumstances of the case, the Tribunal was justified in law in allowing the benefit of telescoping to the assessee in respect of consideration of agricultural land sold in the past with reference to purchase of land at Pali road even though the assessee had failed to establish the nexus between the two? (12) Whether on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that while making block assessment under Chapter XIV -B of the IT Act, 1961, estimated addition on account of unrecorded household expenses was not permissible to make? The learned Tribunal, vide its order dt. 17th Feb., 1999, dismissed the application, so moved by the Revenue, after dealing with all the twelve questions. According to the Tribunal, none of the questions is having a referable question as it was based on finding of fact and that too recorded after appreciation of evidence on a question. Learned Counsel appearing for the Revenue submitted that the Tribunal failed to consider that all the questions were essentially raised to decide the principle of laws. It was urged that in view of the judgment of the apex Court in the case of CIT v. Indian Woollen Textiles Mills : [1964]51ITR291(SC) held that if the Tribunal does not consider the evidence covering all essential matters, rather findings are recorded, ignoring even available material, then such findings would give rise to the question liable to be referred. Reference of another judgment of the Hon'ble apex Court (sic -Rajasthan High Court) has been made, where in the matter of CIT v. Smt. Satnam Malik it was held that if a finding is arrived at without proper consideration of the entire material, a question of law arises. After placing reliance on these two judgments, learned Counsel for the Revenue urged that all the questions raised for reference were required to be referred to by the Tribunal, because order passed by the Tribunal was without proper appreciation of material available on record.
(3.) ON the other hand, learned Counsel appearing for the assessee, submitted that none of the questions raised for reference involves a question of law, rather it is not even a case, where Tribunal has failed to consider evidence available on record or even ignored any material before drawing its conclusion. The perusal of the order passed by the Tribunal reveals that the said order was passed, after proper appreciation of facts available on record. Thus, essentially, the matter was decided by proper appreciation of material available on record to answer the question of facts. If any conclusion was drawn by the Tribunal, based on those facts, then Revenue cannot ask for reference for the purpose of reappreciation of material. Learned Counsel further urged that the judgments cited by the Revenue have no application to the present matter as those judgments were given by the Hon'ble apex Court on its own facts, where Tribunal either failed to consider material available on record of the findings were arrived at without due and proper consideration of entire material. According to the assessee, it is not a case where either of the conditions is satisfied for seeking reference.;