Income-tax---

----Reference---Income-tax Officer making additions to income returned-- Tribunal allowing relief---Justified---Order of Tribunal not perverse---No question of law arises---Indian Income Tax Act, 1961, S.256(2).

The assessee filed a return declaring his income at Rs.1,24,293 for the assessment year 1980-81. The Income-tax Officer assessed the total income at Rs.9,23,700. The Tribunal disallowed certain additions made by the Income-tax Officer. On an application to direct reference at the instance of the Revenue:

Held, dismissing the application, that the Tribunal was justified in allowing certain relief to the assessee. The order of the Tribunal was not perverse and was based on appreciation of facts. No question of law arose from its order.

CIT v. Ashoka Marketing Ltd. (1976) 103 ITR (SC) ref.

D.D. Vyas for the Commissioner.

J.W. Mahajan for the Assessee.

JUDGMENT

N. K. JAIN, J.---The applicant (the Commissioner of Income-tax, Bhopal).has filed this application under section 256(2) of the Income Tax Act, 1961 (for short "the Act"), seeking direction to the Income-tax Appellate Tribunal, Indore, to state the case and refer the following two questions said to be of law arising out of its order, dated November 29, 1990, passed in I.T.As. Nos.491 and 537/Ind. of 1985 relating to the assessment for the assessment year 1980-81, for our opinion:.

"(1)Whether, on the facts and in the circumstances of the case, the relief allowed by the Tribunal was on justifiable grounds?

(2)Whether, on the facts and in 'the circumstances of the case, the decision of the tribunal was not perverse?"

Briefly stated the facts of the case are that for the assessment year 1980-81, the non-applicant assessee filed a return declaring his income at Rs.1,24,293 only. The Income-tax Officer, however, assessed the total income of Rs.9,23,700 making additions on various counts. The assessee filed appeal before the Commissioner of Income-tax (Appeals) who by his order, dated March 30,1 985, allowed the appeal in part. Feeling aggrieved thereby both the parties, i.e., the Department and the assessee, went in appeal before the Tribunal. The Tribunal, by its order, dated November 29, 1990, dismissed the appeal filed by the Department but allowed assessee's appeal in part inasmuch as the Tribunal further disallowed certain additions. The Department preferred an application under section 256(1) requiring the Tribunal to state the case and refer the aforesaid questions to the High Court for its opinion. The Tribunal, vide its order, dated April 11 1991, dismissed the application holding that there is no referable question of law.

We have heard Shri D.D. Vyas, learned counsel for the applicant/Department and Shri J. W. Mahajan, learned counsel for the non- applicant/assessee.

The assessment in question is obviously based on appreciation of facts. In CIT v. Ashoka Marketing Limited (1976) 103 ITR 543, the Supreme Court has held that on facts, whether or not the assessee has concealed his income was a question to be decided on the facts of the case and as such no question of law arises from the order of the Tribunal.

Nothing substantial could be made out before us so as to disclose that the findings arrived at by the Tribunal were perverse and not supportable by the evidence on record. We are, therefore, satisfied that the order is based on appreciation of facts and does not give rise to any referable question of law.

We, thus, dismiss the application but without any order as to costs. Counsel's fee is, however, fixed at Rs.750, for each side, if certified.

M B.A31596/FCApplication dismissed.