JUDGMENT
G.G. Sohani, Actg. C.J.
1. This is an application under Section 256(2) of the Income-tax Act, 1961.
2. The material facts giving rise to this reference, briefly, are as follows. While framing the assessment of the assessee for the assessment year in question, the Income-tax Officer made an addition of Rs. 59,000 as income from undisclosed sources. The appeal preferred by the assessee in that behalf before the Appellate Assistant Commissioner was rejected. On further appeal before the Tribunal, the Tribunal also upheld the order passed by the Income-tax Officer in this behalf. The Tribunal also rejected the contention urged on behalf of the assessee that, in any event, the amount of Rs. 20,000 which was the peak credit should have been taken into consideration. Aggrieved by the order passed by the Tribunal, the assessee sought reference, but the application submitted by the assessee in that behalf was rejected. Hence, the assessee has filed this application for directing the Tribunal to refer the following questions of law to this court for its opinion :
“(1) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in coming to the finding that the haste khata receipts were secret money and were not out of the gross collections of earlier credit sales ?
(2) Whether, on the facts and circumstances of the case, the Tribunal was justified in holding that the benefit of peak credit theory cannot be given to the assessee when, in fact, the addition has been made in the total income of the assessee ?”
3. Having heard learned counsel for the parties, we have come to the conclusion that so far as question No. 1 is concerned, the finding of the Tribunal that the amount of Rs. 59,000 was the income of the assessee from undisclosed sources is based on the material on record. It is a finding of fact and no question of law arises out of that part of the order of the Tribunal. As regards question No. 2, we are of the opinion that the following question of law does arise out of the order passed by the Tribunal:
“Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the benefit of peak credit could not be granted to the assessee ?”
4. The application is, therefore, partly allowed. The Tribunal is directed to refer the aforesaid question of law to this court for its opinion. In the circumstances of the case, parties shall bear their own costs.