Income-tax---

----Reference---Revision---Appeal to Appellate Tribunal---Tribunal whether correct in setting aside Commissioner's order passed in revision---Mixed question of law and fact which has to be referred---Income Tax Act, 1961, Ss.256 & 263.

Held, that the questions whether the Appellate Tribunal was legally correct in holding that the order of the Income-tax Officer was not erroneous and prejudicial to the interests of the Revenue, that the Commissioner of Income-tax had failed to establish .the nexus between the stock found at the time of the search and the assessment under appeal and whether the Tribunal was justified in setting aside the order passed by the Commissioner of Income tax under section 263 were mixed questions of law and fact which had to be referred.

JUDGMENT

These are three applications made by the Revenue under section 256(2) of the Income Tax Act, 1961, requiring us to direct the Income tax Appellate Tribunal to draw up a statement of the case in all the matters and refer the following common questions to this Court for its opinion:

"(1)Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal is correct in law in setting aside the order of the Commissioner of Income-tax passed under section 263 holding that it was based on mere suspicion and surmises?

(2)Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal is legally correct in holding that the order of the Income-tax Officer was not erroneous and prejudicial to the interests of the Revenue?

(3)Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal is legally correct in drawing a conclusion that the Commissioner of Income-tax has failed to establish nexus between the stock found at the time of search and the assessment under appeal?"

Inasmuch as, in our opinion, all the aforesaid questions are mixed questions of law and fact, we direct the Income-tax Appellate Tribunal, Delhi Bench `B', New Delhi, to draw up a statement of the case for each assessment year and refer the aforementioned questions to this Court for its opinion.

The applications are allowed. There shall be no order as to costs.

M.BA./2383/TApplications allowed.