Judgment:
A.L. Bahri, J.
1. The Revenue has moved this court under Section 256(2) of the Income-tax Act, 1961, for a direction to the Income-tax Appellate Tribunal, Amritsar, to submit the statement of the case and to refer questions of law to this court as under :
'(i) Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal is right in law in accepting the new arguments of the assessee that the partners whose names were not included in the licence had not dealt with or handled liquor ?
(ii) Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal is right in law in setting aside the orders of the authorities below for fresh disposal when the assessee had admitted before the Income-tax Appellate Tribunal that the plea that three partners whose names did not occur in the licence had not dealt with or handled liquor or was not taken before the Income-tax Officer in the assessment proceedings ?
(iii) Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal is right in law in deciding the case against the ratio of decision of the Punjab and Haryana High Court in CIT v. Hardit Singh Pal Chand and Co. ?'
2. In order to appreciate the arguments, only a few facts which are not disputed need to be noticed. In the assessment year 1988-89, Rajwant Singh and Co. applied to the Income-tax Officer for the grant of a certificate of registration of their firm constituted of 14 partners. The Income-tax Officer declined the request on the ground that the Excise and Taxation Department had issued the licence in favour of the firm constituting 11 partners only. To the excise and taxation authorities intimation was given by the assessee-firm that 14 persons were to be partners in the firm i.e., three more partners be added in the licence. The first appeal filed against the order of the Income-tax Officer stood dismissed. However, when the matter went to the Income-tax Appellate Tribunal, it remanded the case for holding an enquiry as to whether such of the persons other than 11persons in whose favour the original licence was granted by the excise and taxation authorities had actually possessed and handled liquor, in order to determine whether the partnership firm of 14 partners violated any rules and regulations under the Excise Act. The application moved on behalf of the Revenue for referring the aforesaid questions to the High Court for decision was declined.
3. Shri R.P. Sawhney, learned counsel appearing on behalf of the Revenue, while referring to the decision of this court in CIT v. Hardit Singh Pal Chand and Co. , argued that registration could not be accorded to the assessee-partnership concern as the excise and taxation authorities had granted licence in favour of 11 persons whereas the partnership in question consisted of 14 partners. On the other hand, Shri N.K. Sood, learned counsel for the respondent, referred to the decision of this court in I.T. Case No. 94 of 1986--CIT v. Kishan Lal Vinod Kumar and Co., decided on March 11, 1989, declining to direct the Tribunal to refer the question of law and decision of the Supreme Court in S. L. P. No. 9102 of 1987, dated May 15, 1989, in that case dismissing the same. Counsel has also produced a copy of the order of the Tribunal in Krishan Lal Vinod Kumar and Co. v. 770. The Tribunal had referred to the decision in Hardit Singh Pal Chand's case , and other cases of this court that such a question was to be decided holding as to whether the assessee was entitled to registration as the Revenue had not brought on record that the non-licensee partners had physically possessed or handled the prohibited goods in violation of the Excise Rules. Learned counsel has also referred to the decision of this court in I. T. Case No. 136 of 1982--CIT v. Kedar Nath Surinder Kumar, decided on August 25, 1988, and I. T. Case No. 34--CIT v. Laxmi Dhar Pran Nath, decided on August 25, 1988. In those cases, the Tribunal had given the finding that the persons whose names did not find mention in the excise licence had not either handled the liquor or sold or dealt with the liquor and such a finding was not questioned by asking for a reference. Thus no referable questions of law arose and the petitions were declined.
4. The contention of learned counsel for the Revenue that a presumption should be drawn that when a request for registration of the partnership is made on behalf of 14 persons it should be deemed that they had actually and physically handled and sold liquor. This contention cannot be accepted. Such a question depends upon the proof of fact as to whether the persons whose names do not find mention in the licence had actuallyand physically handled and sold liquor or not. In order to determine such a question of fact the Tribunal in the present case had remanded the matter. Hence no referable question of law arises from the order of the Tribunal. This petition is, therefore, dismissed.