ORDER
S. K. CHANDER, A. M. : In these reference applications, the CIT(Central), Ludhiana, is before us with a prayer that prayer that four questions mentioned in the reference application for the asst. yr. 1982-83 and seven questions mentioned in the reference application for asst. yr. 1983-84, said to be questions of law and said to arise out of two orders of the Tribunal in ITA Nos. 7 of 1988 and 126 of 1988 both dt. 21st Sept., 1988, be referred to the High court of Punjab & Haryana at Chandigarh for its opinion.
2. We have heard the parties. On perusal of the orders of the Tribunal, contents of the reference applications and the respondents reply filed by the assessee, we are of the opinion that no referable question of law arises out of the orders of the Tribunal for the following reasons and, therefore, we are dismissing the reference applications.
3. The statement of facts filed by the CIT are opinionated and, therefore, cannot form the basis of consideration of the questions. It is to be noted that the reference is to be considered on the facts and in the circumstances of the case as found by the Tribunal in its order as held by the Supreme Court in the case of Aluminum Corpn. of India vs. CIT (1972) 86 ITR 11 (SC).
4. Now we come to the questions recorded in the reference applications for the asst. yr. 1982-83 after the disposal of which it would be easier to deal with the questions raised in the reference application for the asst. yr. 1983-84. For the asst. yr. 1982-83, the first question by the Revenue is whether, on the facts and in the circumstances of the case, the Tribunal was right in law in deleting the additions of Rs. 1,29,864 on account of provision for warranty claim and of Rs. 9,49,810 on account of free service charges. These issues have been determined by the Tribunal in paragraphs 1 to 10 of its order mainly relying on the judgment of the Supreme Court in the case of Investment Ltd. vs. CIT (1970) 77 ITR 533 (SC) and applying the ratio thereof to the facts of this case. The observations of the Tribunal are that “the facts of the case before the Supreme Court, to our mind, are almost similar to the facts of the assessees case before us”. The observations of the Tribunal in Paragraph 6 of its order clearly show that the finding of fact recorded was covered by the judgment of the Supreme Court as the Tribunal has compared the facts of the case decided by the Supreme Court and the facts of the case of the assessee. The Tribunal has also held that the method employed by the assessee in determining this liability was on most scientific basis as the assessee had arrived at the same on the basis of actual liability for a few months on the basis of which it was worked out for the unexpired warranty period during the year. The Tribunal has also given a finding that the liability for the warranty claim is included in the sale price and this fact had not been controverted by the Revenue before the Tribunal. It was, therefore, inferred by the Tribunal that the liability which was embedded in the sale had to be allowed as a deduction while computing the correct total income of the assessee. The Tribunal also found that this method adopted by the assessee was commercially expedient and in accordance with the set principles of accountancy. On such facts, we are of the opinion that in so far as provision for warranty claim is concerned, no referable question of law arises.
While disposing of the issue with regard to the disallowance of Rs. 9,49,810 on account of fee service charges, the Tribunal, in Paragraph 10 of its order, has projected that “the claim is more or less similar to the claim under the head warranty claim. The Tribunal further pointed out that the issue of warranty claim was discussed in detail and for the same reasons the orders of the authorities below were reversed and relief of Rs. 9,49,810 on this account was allowed to the assessee. Since the reasoning of the Tribunal was the same as on the warranty claim and the facts were similar, and we have rejected the question on warranty claim, we find that this part of the question also does not give rise to any referable question of law. Question No. 1 is, therefore, rejected.
5. Coming to question No. 2, it projects whether, on the facts and in the circumstances of the case, the Tribunal was right in law in deleting the disallowance of Rs. 2,62,825 made on account of royalty paid to M/s. Hero Cycles Pvt. Ltd. This question also contains a portion in argumentative form which we have not reproduced. The Tribunal has dealt with this issue in paragraphs 11 to 14 of its order. The Tribunal recorded a finding of fact on this issue that the correspondence between M/s. Hero Cycles Pvt. Ltd. and the assessee as available in the paper book filed before it indicated that M/s. Hero Cycles Ltd. allowed the assessee-company the use of trade mark “Hero” which fact was supported by the resolution passed by M/s. Hero Cycles Pvt. Ltd. fixing the amount of royalty therein. The Tribunal further recorded that the expenditure was not for any breach of law. It was observed that nothing was brought before the Bench on behalf of the Revenue to show that the trade mark authorities took exception to the use of the trade mark by the assessee for any legal action in that regard. It was also projected that the payment by the assessee to M/s. Hero Cycles Pvt. Ltd. was accepted. The Tribunal also projected an important fact that there was no room for doubt in so far as this transaction was concerned because there was no loss to the Revenue by allowing this expenditure in so far as what was claimed as deduction here had been taxed as the income of M/s. Hero Cycles Pvt. Ltd. at the same rate as in the case of the assessee. On such facts, in our opinion, no referable question of law arises and, therefore, question No. 2 also is rejected.
6. Now, coming to question No. 3, we find that it is regarding the deletion of the disallowance of Rs. 2,70,000 made on account of market feed back expenses paid to M/s. Munjal Sales Corporation. The Tribunal dealt with this issue in its order in paragraphs 17 to 20. While allowing the claim, the Tribunal, in its order in paragraph 20 observed that the correspondence regarding agreement for the services in question had been placed in the paper book. The copies of the reports of the employees of M/s. Munjal Sales Corporation had also been filed in the paper book. According to the Tribunals finding there was no controversy about the facts recorded in these documents. The Tribunal further recorded that the payment of the fee had also not been denied or controverted. Thereafter, the Tribunal found that the actual expenditure incurred by the assessee on this account during the first three years, namely, 1982-83, 1983-84 and 1984-85, was much less as compared to the payment made to M/s. Munjal Sales Corporation in the subsequent years as sole selling agents and those payments had been allowed by the ITO. In particular, the Tribunal observed that if there was no mention in the material presented to the cost auditors about this expenditure, it would not alter the position as it was evident from the correspondence regarding the agreement and services rendered. In our opinion, though the Tribunal did not refer to the provisions of S. 40A(2)(a) of the Act, the CIT is bringing these provisions into the question now under consideration to make it a question of law. This is a new case being built up and there is no finding on this in the order of the Tribunal and, therefore, this part of the question by the CIT is unfounded and not based upon the facts and circumstances of the case recorded by the Tribunal. It is rejected.
7. The last question is about the allowance of 25% of the claim of expenses incurred by the assessee which has been recorded in the question as on “Research and Development Expenditure”. The question also contains an argument that the allowance is contrary to the facts available on record in so far as the Tribunal observed that the claim has been allowed by the ITO. In this regard, we find that this issue was determined in paragraphs 15 and 16 purely on the facts of the case. No question of law, therefore, arises therefrom. There is no miscellaneous application filed challenging the finding of the Tribunal on facts regarding the ITO not having allowed the claim in the subsequent year. This question is, accordingly, rejected. This disposes of the reference application for the asst. yr. 1982-83.
8. Now, coming to the asst. yr. 1983-84, the questions serially numbered 2, 3 and 4 relating to royalty, disallowance on account of market feed back expenses and provision for warranty claim are the same and on the same set of facts as in the asst. yr. 1982-83. Since we have rejected the questions for the asst. yr. 1982-83, for the same reasons mutatis mutandis, we reject these questions for this year as well.
9. Coming to question No. 1 for this year, we find that it relates to the deletion of disallowance of Rs. 31,66,065 on account of sales-tax. This question is not referable because it is covered by the judgment of the Punjab & Haryana High Court in the case of Sirsa Industries vs. CIT (1989) 178 ITR 437 (P&H). It may be mentioned that the Tribunal had followed the judgment of the Punjab & Haryana High Court in the case of CIT vs. United India Woollen Mills (supra). In the case of CIT vs. Sirsa Industries (1981) 132 ITR 457 (P&H), the judgment in the case of CIT vs. United India Woollen Mills (supra) has been followed. As such we have already the opinion of the High Court on the issue. There is no need to burden the Court again with the same issue for its opinion because it is now well-settled that, if the opinion of the High Court is available on an issue, the same issue need not be referred again to its opinion. We, therefore, reject this question.
10. This brings us to question No. 5 which is regarding allowing 100% depreciation on racks treating them as plant. In this regard, we find that there cannot be much of controversy on this issue now because the racks are installed in the machine shop. In the light of the judgment of the Supreme Court in the case of CIT vs. Elecon Engg. Co. Ltd. (1987) 166 ITR 66 (SC), there cannot be any doubt about treating these racks as plant and the depreciation is properly allowed. This question is also rejected.
11. Question No. 6 is regarding the expenditure allowed on wooden partition by the Tribunal. This is purely a finding of fact and no question of law arises. It is, therefore, also rejected.
12. The last question is regarding 15% depreciation on machinery. This was allowed by the Tribunal first in the asst. yr. 1982-83 and that order has been followed for the asst. yr. 1983-84. The Revenue is not aggrieved with such a finding in the basic order for the Asst. yr. 1982-83 as no question has been sought by it. In the asst. yr. 1983-84, however, a question has been raised but reasons given by the Tribunal for the asst. yr. 1982-83 have apparently been accepted. Therefore, we do not see any referable question of law for this year. This question as well is rejected.
In the result, but the reference applications are dismissed.
S. S. MEHRA, J. M. :
13. I have had the occasion and benefit of perusing carefully the order dt. 10th April, 1990, of my learned brother. However, I regret my inability not to be able to agree with the conclusion arrived at with respect to question No. 1 for the asst. yr. 1982-83 and question No. 4 for the asst. yr. 1983-84. According to my learned brother, both these questions for both the years also do not require any reference; whereas, in my considered view, these two questions do indeed require reference, clearly being referable mixed questions of law and fact. I, therefore, prepare a draft statement of the case with respect to question No. 1 for the first year and question No. 4 for the later year.
14. For the asst. yr. 1982-83, the assessee claimed a sum of Rs. 1,29,864 under the head “Other expenses” in the moped division on account of provision for warranty claim/replacement. It was stated before the learned ITO on behalf of the assessee that the assessee was providing facility for warranty replacement to the buyers of the mopeds for six months from the date of sale by the dealer to the customers. It was also stated that the liability of the company existed for the mopeds sold during the year. It was further stated that sale price of the mopeds included the cost of warranty embedded in the sale price and the same is credited to the sales account. The estimated cost of parts to be replaced during the warranty period is a necessary debit of the year in which the credit for sale is given. The liability of Rs. 1,29,864 was worked out by the assessee on account of warranty as under :
Sales for October, November and December 16,233 Nos.
Warranty replacement
Rs. 1,30,386
Average warranty replacement per moped
Rs. 8.”
Total sales of mopeds effected in September to December
16,233
Provision at the rate of Rs. 8 per moped
Rs. 1,29,864
The learned ITO did not allow the claim holding that, in earlier years, it was claiming such liability on actual basis while, for the year under appeal, the same was charged partly on actual basis and partly on accrual basis. This was neither warranted on commercial principles nor on accounting principles as no company could forecast a manufacturing defect that its products were liable to suffer nor could any accountant predict the expenditure during the period which is to start from the date of sale by the dealer and not by the company. On the date of sale, no liability was created in the books of account and it was only at the end of the year that the liability is created in its books of account. In the accounts presented to the cost auditors, the assessee has not claimed any such expenditure. Further, the liability was contingent in nature and not an ascertained liability. The calculation of provision was also unscientific, inasmuch as, the assessee had assumed that claims in the last quarter of the year under warranty against the sales which may have been effected by the dealers against the assessees own sales of previous year extending over a period of more than 12 months will more or less be equal to the claims of warranty against its own sales to the sellers of approximately 16,233 mopeds which may still be lying with the dealers and for which warranty claims may still not have started. The learned CIT(A) upheld the conclusion arrived at by the learned ITO. The assessee came before the Tribunal.
15. Submissions made before the Tribunal are recorded in paragraphs 3 to 5 of its order. The Tribunal ultimately decided the issue, as per paragraph 6 of its order, in favour of the assessee, copy of the Tribunals order being annexed.
16. The assessee-company claimed in its moped division a sum of Rs. 17,68,530 on account of free service during the warranty period. The learned ITO noticed that this included a sum of Rs. 9,49,810 as a provision. It was stated before the learned ITO that, as per the assessee-company, each moped was provided with three free service coupons worth Rs. 10 each and since the company issued free service coupons to the customers during the year and the value of each coupon is fixed, the liability of the assessee-company existed. Therefore, a provision was made accordingly. It was also stated that the liability on account of free service was included in the sale price of the moped and, therefore, the same had rightly been claimed. The learned ITO held that it was only a provision and in the nature of a contingent liability. The same was, therefore, not admissible. She also observed that, in earlier years, the claim was made on actual basis and, therefore, the same could not be allowed on mercantile basis and that too as a provision. She also observed that, in the books of account, no liability was created with the sale so made which would surely have been made, if the assessee was genuinely following the system of accountancy. It was only at the end of the year that the assessee decided to create a provision and claimed it as a deduction. Further, the liability did not arise at the time of sale and it arose only when the customers made claims of free service and the dealer, in turn, after providing free service, charged the assessee for the same. She, therefore, did not allow the claim. The learned CIT(A) upheld the decision of the learned ITO. The assessee came before the Tribunal.
17. Submissions made before the Tribunal are recorded in paragraphs 8 and 9 of its order. The Tribunal decided this issue in favour of the assessee with the following observations :
“Paragraph 10 of the Tribunals order”
For the asst. yr. 1983-84, the Tribunal dealt with the issue in the following manner :
“Paragraphs 11 and 12 of the Tribunals order dt. 21st Sept., 1988, in ITA No. 126 of 1988.”
18. Following documents are marked annexures which shall form part of the statement of the case :
(i) Copies of the ITOs orders
Annexures A and A-1
(ii) Copies of the CIT(A)s order
Annexures B and B-1
(iii) Copies of the Tribunals orders
Annexures C and C-1.
REFERENCE UNDER S. 255(4) OF THE IT ACT, 1961
In the above reference applications, the Revenue raised four questions for the asst. yr. 1982-83 and six for the asst. yr. 1983-84. According to the learned Accountant Member, the applications were required to be dismissed as no referable question of law arose for making reference for any of the years. However, according to the Judicial Member, question No. 1 for the asst. yr. 1982-83 and question No. 4 for the asst. yr. 1983-84 are referable mixed questions of law and fact. Thus, a difference of opinion for both the years is occasioned.
Question No. 1 for the asst. yr. 1982-83 is as under :
“Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in deleting the additions of Rs. 1,29,864 on account of provision for warranty claim and of Rs. 9,49,810 on account of free service charges despite the fact that the claims made are merely provisions/contingent liabilities and hence not allowable as per the settled law ?”
Question No. 4 for the asst. yr. 1983-84 as under :
“Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in deleting the additions of Rs. 1,45,755 on account of provision for warranty claim and of Rs. 6,91,520 on account of free service charges despite the fact that the claims made are merely provisions/contingent liabilities and hence not allowable as per the settled law ?”
“The matters are now being placed before the Honble President for proceeding further on the following difference of opinion :
“Whether, in the facts and in the circumstances of the case, question No. 1 for the asst. yr. 1982-83 and question No. 4 for the asst. yr. 1983-84 are referable mixed questions of law and fact or not ?”
“Whether, in the facts and in the circumstances of the case, question No. 1 for the asst. yr. 1982-83 and question No. 4 for the asst. yr. 1983-84 are referable mixed questions of law and fact or not ?”
CH. G. KRISHNAMURTHY, PRESIDENT (AS THIRD MEMBER) :
These reference applications came up for hearing before the Chandigarh Bench. In these reference applications, the Revenue raised four questions, said to be questions of law for the asst. yr. 1982-83 and seven questions for the asst. yr. 1983-84.
2. The learned Accountant Member came to the conclusion that both these applications were to be dismissed as no referable question of law arose from the orders of the Tribunal for these assessment years. But according to the learned Judicial Member, question No. 1 for the asst. yr. 1982-83 and question No. 4 for the asst. yr. 1983-84 are mixed questions of law and fact arising from the order of the Tribunal and required to be referred to the High Court. Thus, a difference of opinion arose as to whether any question of law arises from the orders of the Tribunal or whether only questions as mentioned by the learned Judicial Member arise. The difference of opinion between the members is, therefore, referred to me in the following words :
“Whether, in the facts and circumstances of the case, question No. 1 for the asst. yr. 1982-83 and question No. 4 for the asst. yr. 1983-84 are referable mixed questions of law and fact or not ?”
3. Question No. 1 for the asst. yr. 1982-83, which according to the learned Judicial Member, is a mixed question of law and fact arising from the order of the Tribunal is as under :
“Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in deleting the additions of Rs. 1,29,864 on account of provision for warranty claim and of Rs. 9,49,810 on account of free service charges despite the fact that the claims made are merely provisions/contingent liabilities and hence not allowable as per the settled law ?”
Question No. 4 that is said to arise from the order of the Tribunal for the asst. yr. 1983-84 is as under :
“Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in deleting the additions of Rs. 1,45,755 on account of provision for warranty claim and of Rs. 6,91,520 on account of free service charges despite the fact that the claims made are merely provisions/contingent liabilities and hence not allowable as per the settled law ?”
4. Now let me refer to the relevant facts. It is to be noted that I do not have to refer to all the questions raised by the CIT in the reference applications because the difference of opinion is narrowed down only to the two questions referred to above, both of which involve the same point, namely, whether warranty claim and free service charges could be allowed as a deduction or not. I shall narrate in the order next following the facts relating to these claims.
5. The assessee, a private limited company, inter alia, claimed a deduction of a sum of Rs. 1,29,864 for the asst. yr. 1982-83 representing the provision made for warranty claims in respect of goods it sold for which it issued warranty. In response to the notice issued by the Assessing Officer to explain the basis for the provision made, the assessee submitted that the company provides facility of warranty replacement to the buyers of the mopeds manufactured by the assessee for a period of six months from the date of the sale by the dealers to the customers. Since the liability for the warranty exists during that period of six months and since the sale price collected includes the cost of warranty also which was credited in full to the sales account, the cost of warranty was estimated on the basis of past experience and actuals quantified and a provision was made to meet the liability. The assessee also furnished the working to the Assessing Officer whereby it was shown that :
Sales for October, November and December
16,233 Nos.
Cost of warranty replacement
Rs. 1,30,386
Average warranty replacement Rs.
8 per moped
Total sales of mopeds effected in September to December
16,233
Provision at the rate of Rs. 8 per moped
Rs. 1,29,864
The Assessing Officer disallowed this claim on the sole ground that this liability did not arise and that it was in the nature of a contingent liability. The Assessing Officer also observed that, in the earlier years, the assessee was claiming this warranty expenditure as and when the expenditure was actually incurred by supplying the necessary defective parts to the dealers. But, in this year, the assessee changed its method of accounting from cash to mercantile and, therefore, it was not permissible to allow the provision made as a deduction.
According to the Assessing Officer, only when a debit note was received from the dealer for supply of defective parts within the warranty period, the assessee would issue a credit note to cover the cost of replacement and it was only then that it could be said that the expenditure was incurred in respect of warranty and till then no liability towards warranty arose so that it could be said to be a liability to be met by the assessee. The Assessing Officer also observed that the calculation of the provision was also unscientific, inasmuch as, in this provision, there was an assumption that the claims in respect of the last quarter of the year would be same as the claims made earlier. The Assessing Officer also noted that, in the accounts presented to the cost auditor for the purpose of cost audit, the assessee did not include any expenditure on account of warranty. Since cost audit was a statutory audit, the provision for the liability in the cost audit should have been made but its claim as a deduction for the purpose of income-tax was, therefore, an after thought. Against this disallowance, the assessee preferred an appeal but in vain.
6. In the further appeal filed before the Tribunal, the Tribunal allowed the claim of the assessee in full. The Tribunal held that, for the purposes of allowance of this claim, adjudication on two issues becomes necessary; one was about whether the assessee was entitled to change the method of accounting and, secondly, whether the provision made was scientific and was allowable as a deduction. Following the judgments of the Supreme Court in the case of Calcutta Co. Ltd. vs. CIT (1959) 37 ITR 1 (SC) and another case of Investment Ltd. vs. CIT (1970) 77 ITR 533 (SC), the Tribunal held that the assessee was entitled to change the method of accounting for good and valid reasons provided it was continued thereafter. Since, in this case, the change in the method of accounting was adopted in order to show true and correct profits and since this method was adopted thereafter consistently, there were good and sufficient reasons for the change and, therefore, the assessee was justified in changing the method of accounting. Discussing the method adopted for arriving at the provision, the Tribunal held that it was very scientific and there was nothing wrong in the assumptions made. The Tribunal found that the estimate made by the assessee was on the basis of actuals and that in the subsequent year this liability was set off against the actual expenditure incurred and further liability was created on the same basis for the unexpired warranty period for that year. Since the sale price included the amount collected for warranty, the cost of warranty has to be allowed as a deduction while computing the correct income of the assessee. Thus the Tribunal allowed the claim of the assessee.
7. It will be seen from the facts narrated above that the findings recorded by the Tribunal are that the change in the method of accounting was proper and justified and called for and the the liability was calculated on a very scientific basis and was properly arrived at. These findings of the Tribunal on the strength of which the claim was allowed were pure findings of fact. There were ample reasons to show as to how this expenditure could not be said to be a contingent liability or an after thought as was discussed by the Assessing Officer as reasons to justify the disallowance. I am, therefore, of the opinion that no question of law can be said to arise out of the order of the Tribunal in so far as this issue included in the first question for the asst. yr. 1982-83 was concerned.
I may also point out here that, on similar facts, a disallowance of Rs. 1,45,755 was made for the asst. yr. 1983-84. That disallowance also was made a part of question No. 4 for the asst. yr. 1983-84. For the reasons mentioned by me in paragraph 7 above, I hold that the disallowance was not proper, that the findings arrived at by the Tribunal on the strength of which this allowance was made were all pure findings of fact and that those findings of fact do not give rise to any question of law.
8. As regards the second part of the question, the relevant facts are : The assessee-company claimed again in its moped division a sum of Rs. 17,68,530 on account of free service charges during the warranty period. During the warranty period, each moped sold by the assessee has to be serviced thrice and, therefore, three free service coupons worth Rs. 10 each were issued. As the company issued free service coupons to the customers during the year and as the value of each coupon was known and was fixed, the liability of the assessee existed and was ascertainable with ease. Therefore, a provision was made to meet this liability which was certain and easy of quantification too. It was pointed out that the liability on account of free service was included in the sale price of the moped and that was an additional reason to provide for the liability to incur that expenditure as otherwise true profits could not be arrived at. Again, the Assessing Officer here also held that the provision was only a contingent liability. Again, she found that, in the earlier years, this claim was made on actual basis and, therefore, the same should not be permitted to be claimed on mercantile basis and that too by way of a provision. She also found that no provision for it was made in the accounts as and when the sale was made and, therefore, this provision could be attributed to be an afterthought. More or less, for the disallowance of this sum, the Assessing Officer adopted the same reasons which were adopted for the disallowance of warranty claims, that is, no-inclusion of the sum in the cost audit, etc. The CIT(A), on appeal, confirmed the disallowance.
9. In the further appeal, the Tribunal allowed the claim. It found that the grounds adopted for the disallowance of this claim were no different from the grounds taken for the disallowance of warranty claims and since there was no justification for the disallowance of warranty claims, it also found no justification for the disallowance of this claim for more or less similar reasons. It held that the change in the method of accounting was called for and that was for good and sufficient reason and that since it was followed thereafter, no objection or exception could be taken to the change in the method of accounting. In so far as ascertainment of the claim was concerned, the Tribunal found that there was a very scientific method adopted. In its opinion, it was wrong to say that the liability for free service did not arise as and when a sale was made and since free service three times for a moped sold was a condition of the contract and bound to happen, the liability in respect of that obligation has to be provided for, inasmuch as, the sale price collected included the cost of the free service.
10. Here also, as on the other point, the findings arrived at by the Tribunal are pure findings of fact and those findings of fact do not give rise to any question of law. Here the facts show that the value of each coupon for free service was prefixed at Rs. 10 and there was, therefore, no difficulty in quantifying the cost of obligation. It cannot be said that, on the facts of this case, this is a contingent liability.
11. I am, therefore, of the opinion that the allowance of this claim does not give rise to any question of law and it was based upon pure findings of fact. I, therefore, hold that even the second part of question No. 1 for the asst. yr. 1982-83 and question No. 4 for the asst. yr. 1983-84 are also not questions of law arising out of the order of the Tribunal and are concluded by pure findings of fact. Therefore, neither question No. 1 for the asst. yr. 1982-83 nor question No. 4 for the asst. yr. 1983-84 is a question of law requiring a reference to the High Court.
12. I, therefore, agree with the view expressed by the learned Accountant Member. I am unable to see how these questions can be regarded as mixed questions of law and fact, inasmuch as, no question of law was involved at all and as I mentioned earlier, they are covered by pure findings of fact. The learned Judicial Member had not pointed out in his dissenting order as to how these questions could be termed as mixed questions of law and fact.
13. The matter will now go back to the regular Bench for decision according to the majority opinion.