ORDER
Sapre, J.
The decision rendered in this case shall also govern disposal of other two cases being MCC No. 303 of 1995 and MCC No. 304 of 1995 because all these applications relate to one assessee and secondly arise out of one impugned order passed by ITAT, the only difference being that they arise out of different assessment orders.
2. This is an application made by revenue (Commissioner of Income-tax) under section 256(2) of the Income Tax Act consequent upon the rejection of their application made before the Tribunal (ITAT) under section 256(1) of the Act for referring certain questions of law which according to applicant (Revenue) arise out of the order dated 25-10-1993, passed by ITAT in ITA No. 344/Ind/90, 223/Ind/91, 349/Ind/90 and 388/Ind/90. However, the Tribunal by order dated 28-9-1994, passed R.A. No. 18 to 50/Ind/94 dismissed the application made by the revenue under section 256(1) in holding, inter alia, that none of the questions proposed by the applicant (Revenue) cannot be said to be question of law but according to Tribunal all the questions proposed are questions of fact. It is with this finding; the Tribunal declined to refer any of the question of this court and dismissed the applications giving rise to filing of the application under section 256(2) of the Act for calling the questions of law from the Tribunal to this court for answer.
3. Heard Shri R.L. Jain, learned counsel for the applicant.
4. Having heard learned counsel for the applicant and having perused record of the case, we are of the opinion that the view taken by the Tribunal that no referable question of law arises in the case is correct and hence, does not call for any interference. In other words, we have not been able to find that any question of law arises out of the order passed by the Tribunal in an appeal by the revenue referred supra
5. In substance, the dispute relates to assessment year 1983-84. It relates to working out of the peak credits to be given to assessee for calculating the profits. So far as one question relating to addition of Rs. 2,49,700 and Rs. 4,49,700 is concerned, it was found to be a typographical error which the Tribunal later corrected it. In other words, in place of Rs. 4,49,700 the figure of Rs. 2,49,700 was mentioned. The department has not challenged the basis for granting this relief to the assessee. This in our opinion does not involve any referable question of law so far as this court is concerned.
6. So far as 2nd question referred to in impugned order of Tribunal is concerned, the same also relates to grant of peak credit in the years 1983-84 and 1984-85 for Rs. 21,485 and Rs. 35,267 as against Rs. 35,267 and Rs. 21,485 for the year in question. Again in our opinion, we do not find any referable question of law in this case for the reason that it is a pure question of fact requiring no interference. Even the amount of entry is so small and negligible that it has no substantial involvement of tax amount payable by an assessee. In any event, it does not involve any issue of law as such which this court may be called upon to decide by taking recourse to provisions of section 256(1) or 256(2) ibid.
7. The same reasoning is applicable to question No. 3 proposed by the revenue which also relates to giving of peak credit in the hands of assessee.
lt was held by the Tribunal that the income earned did not belong to other firm but belonged to assessee and hence, the same had to be taxed in the hands of an assessee.
8. Coming to question Nos. 4 and 5 proposed by revenue, they also do not really have the status of question of law within the meaning of section 256(1) or (2) and thus, can not be said to really arise out of the order of Tribunal while deciding the second appeal. The reasoning assigned by Tribunal in paras 10, 11 and 13 while declining to call for the questions of law appears to be proper and legal. One question was relating to charge of interest by assessing officer. The question was in the absence of any provision not being mentioned could the interest be charged whether under section 139(8) or 217(1)(a). The copy of order was then produced for finding out whether any section was mentioned in the order of assessing officer. All this also do not involve any question of law as such? Similar is the position of the question No. 5.
9. In our opinion, therefore, none of the questions (1 to 5) proposed by revenue can be said to be the questions of law referable to this court for answer. They all are based on peculiar facts and relates to facts only involving no issue of law as such.
10. Application, thus, fails and is hereby dismissed, resulting in upholding of the order passed by Tribunal in exercise of powers conferred under section 256(1) ibid.
