S.C. Mohapatra, J.
1. These references relate to the assessment years 1962-63, 1963-64 and 1964-65 in respect of the same assessee who is assessed as an individual. Against the assessments, the assessee preferred appeals and the Appellate Assistant Commissioner set aside the assessments in respect of the three years with a direction to reframe the same afresh after giving adequate opportunity to the appellant to cross-examine the witnesses in the light of the observations made in the appellate order. The assessee and the Revenue both preferred appeals before the Income-tax Appellate Tribunal where it was held, amongst others, that statements obtained under Section 131 of the Income-tax Act cannot be used against the assessee without providing an opportunity to him to place materials for rebutting the same. It was further held that the Income-tax Officer failed to consider all the evidence on record and without calling upon the assessee to furnish explanation on some points, the Income-tax Officer formed a conclusion against the assessee unwarranted by the facts and circumstances of the case. With such findings, the Tribunal considered some materials ignoring some others and directed the Income-tax Officer to exclude all the investments, remittances, receipts, income from dividends, income from interest and other usufructs found in the name of Kalinga Foundation Trust from the assessments of the assessee in all these years. Against these appellate orders, the Revenue filed applications under Section 256(1) of the Income-tax Act for stating a case to this court. Being of the opinion that all the findings are inferences of fact, the Tribunal refused to refer the questions posed before it. Applications under Section 256(2) of the Act were also rejected by this court and the Revenue approached the Supreme Court against such rejection.
2. After hearing the parties, the Supreme Court held that, on the principles enunciated by the Supreme Court in several decisions referred to in the judgment, eight questions arising out of those proposed by the Revenue are questions of law on the facts and circumstances of the case. The eight questions are as follows :
'1. Whether the findings of the Appellate Tribunal are vitiated in law by reason of it having ignored relevant and admissible evidence and having relied on incorrect facts and mis-statement of facts ?
2. Whether, on the facts and in the circumstances of the case, the conclusion of the Tribunal that the Kalinga Foundation Trust came into existence in 1947 and that it was distinct from the trust created by the assessee in 1949 logically followed from the materials on record or it was perverse in the sense that no reasonable man could come to it on the said materials ?
3. Whether, on the facts and in the circumstances of the case, in arriving at the finding that the Kalinga Foundation Trust had acquired property from donations from the public, the Tribunal erred in law in not giving due consideration to the several matters relevant for determination of the points which had been considered by the Income-tax Officer in the assessment order ?
4. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the income from dividend shown in the name of the Kalinga Foundation Trust, the interest on the loans advanced in the name of the Kalinga Foundation Trust and all investments, remittance, receipts and actual payments in the name of Kalinga Foundation Trust did not belong to the assessee and should therefore be deleted from the assessment of the assessee ?
5. Whether, on the facts and in the circumstances of the case, there was any evidence in support of the Tribunal's finding that the assessee had collected donations from the public for the Kalinga Foundation Trust ?
6. If the answer to question No. 5 (rearranged by this court) be in the negative, then whether the Tribunal was right in holding that the amounts donated by the assessee to the said trust were satisfactorily explained and accordingly they were not to be included in the assessment of the assessee ?
7. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the Revenue authorities were bound to accept the decision of the Supreme Court in S. P. Jain v. Kalinga Tubes Ltd., as to the ownership of 39,000 shares of Kalinga Tubes Ltd. in spite of the materials collected by the Income-tax Officer subsequent to the delivery of the judgment in the said case ?
8. If the answer to question No. 7 (rearranged by this court) be in the negative, then whether the finding of the Tribunal that the persons in whose names the said shares stood were not the benamidars of the assessee was perverse and was arrived at without due consideration of the material considered by the Income-tax Officer in detail of the point ?'
3. The Supreme Court directed the Income-tax Appellate Tribunal to send a statement of case for the three years involved on the questions extracted above to the High Court. Accordingly, a statement of case has been sent by the Tribunal on the basis of which we are hearing these matters.
4. Heard Mr. A. K. Ray, learned counsel appearing for the Revenue, and Mr. S. N. Ratho, learned counsel appearing for the assessee. They elaborately placed all materials including orders at different stages. In the course of submissions, we pointedly wanted learned counsel for both parties to state whether the finding of the Tribunal that the assessee has not been given a reasonable opportunity to rebut the statements recorded ex parte under Section 131 of the Act and that the Income-tax Officer failed to consider all the evidence on record and did not call upon the assessee to furnish explanation on some points have been disturbed. Both learned counsel have been fair enough to state that these findings have not been disturbed. On a perusal of the decision of the Supreme Court, we also find that these findings remain undisturbed.
5. Heard learned counsel for both parties on each of the questions with a view to record our answers in respect of them, we find that although answers can be recorded either in favour of the Department or against it, ultimately each answer would again become inconclusive on account of the final findings of fact of the Tribunal that the Income-tax Officer has not given a reasonable opportunity to the assessee to rebut the statements recorded ex parte under Section 131 of the Act and to furnish explanation to some of the materials. It is true that the Tribunal has not given due weight to the relevant and admissible evidence while recording the findings of fact. However, the findings of the Tribunal on such facts are also vulnerable as they may require reconsideration.
6. If we indicate clearly our answers in respect of each of the questions in the background of our discussions made above and in the absence of reasonable opportunity being afforded to the assessee, they would be of academic interest inasmuch as the answers against the assessee would become vulnerable on account of the need to undo the absence of reasonable opportunity. A clear and conclusive finding binding on the parties can be given only after reasonable opportunity is given to the assessee as found by the Tribunal. When reasonable opportunity is given to the assessee fresh facts may come to light which are again to be considered.
7. In our advisory jurisdiction, it is not desirable to record findings of facts. The Supreme Court in its order has also very clearly observed that it is neither necessary nor proper at the stage of considering whether a statement of case is to be made to express any opinion with regard to the findings of fact.
8. No answer should be given in advisory jurisdiction which would finally decide the issue since a final finding can be arrived at only after giving reasonable opportunity to the assessee and the explanation given by the assessee would have a material bearing on the finding. It is necessary that the Assessing Officer gives an opportunity to the assessee.
9. After giving our anxious consideration to the matter and after elaborately hearing learned counsel for both the parties who placed all the materials on record for several days together, we are satisfied that the Tribunal has not considered the evidence in its proper perspective while rendering the decision in appeal and, accordingly, the findings of the Appellate Tribunal are vitiated in law. As the final fact-finding forum, the Tribunal has to consider the same again. Since the Tribunal has recorded a finding that a reasonable opportunity has not been given to the assessee, it cannot now give findings without giving opportunity to the assessee to give rebuttal evidence and explanation. This can effectively be done by the Assessing Officer.
10. On the aforesaid answer, the reference applications are disposed of as above leaving it to the Tribunal to pass consequential orders on the basis of the aforesaid answer. There shall be no order as to costs.
J. M. Mahapatra, J.
11. I agree.