Judgment:
ORDER
BY THE COURT :
These are cross-applications, one by the Revenue and the other by the assessee, raising the following questions under s. 256(2) of the IT Act, for the opinion of this Court :
ITA No. 47 of 1992 :
'1. Whether the Honble Tribunal on the facts and circumstances of the case were right in law in deleting the trading addition of Rs. 94,392 ignoring the fact that the addition made was not on the sale of agarbatties, but was on the sale of other items of general merchandise ?
2. Whether the Honble Tribunal while giving the decision to delete the trading addition of Rs. 94,392 were correct in law in giving a finding on the facts which were not relevant to the said trading addition ?
3. Whether the Honble Tribunal were right in law in entertaining a fresh evidence and thereby deleting the addition of Rs. 44,100 made on account of unexplained cash seized ignoring the fact the evidence produced before the Tribunal was never produced before the Assessing Officer ?
4. Whether, on the facts and in the circumstances of the case, the Tribunal was legally justified inholding that the credit of Rs. 1,02,500 in the account of Sri Laxmi Trading Company and interest of Rs. 6,150 represented its income liable to tax under s. 68 of the IT Act, 1961 ?
5. Whether, on the facts and in the circumstances of the case, the burden for proving that the credit of Rs. 1,02,500 represented the income of the assessee had shifted to the income-tax Department after its initial discharge by the assessee ?
6. Whether, on the facts and in the circumstances of the case, the Tribunal was legally justified in holding that the amounts of Rs. 5,17,610 and Rs. 40,00 represented the income of the assessee liable to tax under s. 69 or 68 of the IT Act, 1961 ?
7. Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in not issuing a direction to the Asstt. CIT to give effect to the finding of ht Settlement Commission in the case of Sri Bhagwandas Khurana, partner of the assessee ?
ITA No. 315 of 1992 :
1. Whether, on the facts and in the circumstances of the case, the payment of Rs. 27,117.40 made to the sales tax department by two cheques No. 039709 for Rs. 9,582.40 and No. 039710 for Rs. 17,535 both dt. 30th January, 1986 could be treated as payment on 30th January 1986 i.e., before the end of the accounting year relevant for the asst. yr. 1986-87 ?
2. Whether, on the facts and in the circumstances of the case, the provisions of s. 43B of the IT Act, 1961 had been rightly applied to disallow the payment of sales tax amounting to Rs. 27,117.40 admittedly due for the asst. yr. 1986-87
3. Whether, on the facts and in the circumstances of the case, the Tribunal ignored the relevant material and relied on irrelevant material to hold that the assessee had failed to explain the nature and source of the credit of Rs. 1,02,500 in the account of Shri Laxmi Trading Company of Gursarai (Jhansi) ?
4. Whether, on the facts and in the circumstances of the case, the Tribunal was legally justified in holding that the credit of Rs. 1,02,500 in the account of Sri Laxmi Trading Company in the assessees book of account and interest of Rs. 6,150 represented its income liable to tax under s. 68 of the IT Act, 1961 ?
5. Whether, on the facts and in the circumstances of the case, the burden for proving that the credit of Rs. 1.02,500 represented the income of the assessee had shifted to the income-tax Department after its initial discharge by the assessee ?
6. Whether, on the facts and in the circumstances of the case, the Tribunal was legally justified in holding that the amount of Rs. 5,17,610 represented the income of the assessee liable to tax under s. 69 or 68 of the IT Act, 1961 ?
7. Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in not issuing a direction to the Asstt. CIT to give effect to the finding of the Settlement Commission in the case of Shri Bhagwan Dass Khurana, partner of the assessee ?'
2. In our opinion, question No. 3 as raised in ITA No. 47 of 1992 by the Revenue is not the question of law and the question Nos. 4, 5, 6 and 7 in that application are misconceived, inasmuch as the Tribunal affirmed additions of the amounts, which are subject-matter of these questions. The assessee has sought reference in respect of these amounts in ITA No. 315 of 1992. The question Nos, 1 and 2 relate to same controversial decision which raise a question of law.
We therefore, direct the Tribunal to draw up a statement of the case and refer question No. 1 as stated in ITA No. 47 of 1992 filed by the Revenue for the opinion of this Court, which is as follows :
'Whether, the Honble Tribunal on the facts and circumstances of the case, were right in law in deleting the trading addition of Rs. 94,392 ignoring the facts that the addition made was not on the sale of agarbatties, but was on the sale of other items of general merchandise ?'
3. Turning to ITA No. 315 of 1992, filed by the assessee, we are of the opinion that question No. 4 only is the question of law and we, therefore, direct the Tribunal to draw up a statment of the case and refer the following question to this Court for its opinion :
'Whether, on the facts and in the circumstances of the case, the Tribunal was legally justified in holding that the credit of Rs. 1,02,500 in account of Shri Laxmi Trading Company the assessees books of account and interest is liable to tax under s. 68 of the IT Act, 1961 ?'
In respect of the other question the application of the assessee stands rejected.
4. The applications of the Revenue and the assessee are, therefore, partly allowed. No order as to costs.