Judgment:
A. R. TIWARI, J. :
The applicant-revenue has filed this application under s. 256(2) of the IT Act, 1961 (for short the Act) seeking direction to the Tribunal to state the case and refer the questions, as extracted below, arising out of the order dt. 25th October, 1993 passed in ITA No. 206/Ind/1993 after rejection of the application, presented under s. 256(1) of the Act, and registered as RA No. 23/Ind/1994, on 26th September, 1994, for the asst. yr. 1987-88 :
'(1) Whether, on the facts and in the circumstances of the case, Tribunal was justified in holding that there was no evidence of constitution of AOP ?
(2) Whether, on the facts and in the circumstances of the case, Tribunal was justified in holding that the income once assessed in the hands of the partner cannot be again assessed in the hands of the AOP ?'
2. Briefly stated, the facts of the case are that a plot of land was taken on lease by Sharadaprasad, his wife Smt. Janakdulari and his two minor sons by a registered lease deed dt. 1st July, 1993 (1973). On that plot a house was constructed. These four persons thus became co-owners. Income from the said property was assessed in the hands of Shri Sharadaprasad to the extent of his share in the property i.e. 50 per cent. The two sons are Devendrakumar and Yogendrakumar. Income from the said property was also assessed in the hands of Devendrakumar in the same manner vide assessment order dt. 20th March, 1981 (1991), for asst. yr. 1987-88. Similarly income from the said property for asst. yr. 1983-84 was assessed in the hands of aforesaid four co-owners individually to the extent of their shares. The AO issued notices under s. 148 of the Act for asst. yrs. 1979-80 to 1987-88 in the status of Association of Persons (AOP) and assessments were completed in this status. On appeal the order of the AO was confirmed by CIT(A). The Tribunal, however, found that there was no evidence for formation of AOP and, therefore, it was not correct to assess in the hands of AOP. The Tribunal also noticed that one of the alleged AOP was already assessed to tax and, therefore, the income was not liable to be assessed again in the status of AOP. The ITA No. 206/Ind/1993, filed by the non-applicant/assessee, was allowed by common order dt. 25th October, 1993. The applicant-Revenue filed the application under s. 256(1) of the Act, which was dismissed. This application was, thus, filed under s. 256(2) of the Act.
3. We have heard Shri A. M. Mathur, learned senior counsel with Shri A. K. Shrivastava, for the applicant/Revenue and Shri B. K. Joshi, learned counsel for the non-applicant/assessee.
4. We find that the Tribunal allowed the appeals as under :
'There is yet another aspect of the matter, namely, that the income of Shri Devendraprasad for the asst. yr. 1978-79 was assessed as individual in respect of his share in the said property vide assessment order dt. 20th March, 1981. That assessment order stands valid. It has been held by the Honble jurisdictional High Court in CIT vs . Mrs. Banno : [1984]147ITR744(MP) , that the principle that is applicable in tax statutes is that the income is subject to tax in the hands of the same person only once. If an assessment (sic) or a firm is taxed in respect of its income, the same cannot be charged again in the hands of the members individually and vice versa. The income has been since charged in the hands of Shri Devendrakumar individually and as such option has been exercised by the Department, it cannot be now assessed in the status of AOP'.
5. In CIT vs . Indira Balkrishna : [1960]39ITR546(SC) , the apex Court has held that there should be definite acts of management on the part of members to hold that there was AOP liable to assessment.
6. The Tribunal declined to state the case and refer the questions as under :
'The Above finding of the Tribunal is based on consideration of the facts brought on record. The Tribunals finding, in our opinion, is a finding of fact and does not give rise to a question of law.
Since the order of the Tribunal is based on the decision of the jurisdictional High Court, we are of the opinion that the question proposed by the Revenue is not a referable question of law. Moreover, as already stated above, we have denied reference on question No. 1. That being so, the reference on question No. 2 will be only academic'.
7. In CIT vs . Ashoka Marketing Ltd. : [1976]103ITR543(SC) and in CIT vs . Kotrika Venkataswamy & Sons : [1971]79ITR499(SC) it is held that the conclusion based on appreciation of facts does not give rise to any question of law.
8. The conclusion of the Tribunal is based on appreciation of facts and is pure finding of fact. This does not give rise to a referable question of law. As regards the question of AOP, it is answered on the basis of the aforesaid decisions. In view of this position, there is no question worth being referred to.
9. In view of the aforesaid factual matrix and legal position, we are satisfied that there is no ground to make the direction and call upon the Tribunal to state the case.
10. Accordingly, this Misc. Civil Case is dismissed, but with no orders as to costs.
11. Counsel fee for each side is, however, fixed at Rs. 750, if certified.