JUDGMENT
Dipak Misra, J.
1. This is an application under Section 256(2) of the Income-tax Act, 1961 (hereinafter referred to as “the Act”), for calling for the statement of case from the Income-tax Appellate Tribunal (for brevity “the Tribunal”).
2. The facts which are essential to be stated for adjudication of this application are that the applicant filed his return of income in the status of an individual and his income was shown at Rs. 38,535. The same consisted of three components, namely, income from profession as an advocate amounting to Rs. 20,000, income of interest received from one Kanhaiyalal Sao to the tune of Rs. 18,535 and from agriculture a sum of Rs. 5,000. The Income-tax Department conducted a search at his residence as well as office on September 22, 1981. The premises of his father, Kanhaiyalal Sao, and his brother, Dr. D. K. Jain, was also effected. During the search of his residence no ornaments were found but from the locker in the Punjab National Bank, Sagar, gold ornaments weighing 664.900 gms., and primary gold weighing 102.900 gms., were found and seized. The primary gold was taken over by the Central Excise Department and eventually was confiscated. When an enquiry was made to find out the source of acquisition of these items an explanation was preferred that the gold ornaments and primary gold belonged to his wife, Smt. Kiran Devi. She had received about 40 tolas of gold ornaments and some silver ornaments at the time of her marriage in the year 1960, the value of which at that time was estimated at Rs. 5,000. In the family partition he had received 50 tolas of gold ornaments which also included the ornaments given to his wife at the time of her marriage. Regarding the extent of ornaments held by his wife, Smt. Kiran Devi, it was confirmed by his father-in-law that the said ornaments were given to Smt. Kiran Devi. The father of the assessee, Kanhaiyalal Sao, and his brother, Dr. D. K. Jain, also confirmed the fact of partition and the receipt of about 50 tolas of ornaments in the family partition by the applicant. Regarding primary gold it was explained that some ornaments were got melted by the wife for making new ornaments for the marriage of their daughter but the new ornaments could not be made and the melted gold as such was kept in the locker.
3. The Inspecting Assistant Commissioner of Income-tax held that the applicant’s wife, Smt. Kiran Devi, could have only 32 tolas of gold ornaments and deducting the value thereof he fixed at Rs. 48,373. The total value of ornaments as well as that of primary gold was found to be Rs. 1,00,340. Thus, the Inspecting Assistant Commissioner assessed the balance of Rs. 51,967 as unexplained investment under Section 69A of the Act. Thus, the total income was determined at Rs. 90,502 plus agricultural income of Rs. 5,000. The assessment order is dated March 22, 1985.
4. Being dissatisfied with the order of assessment the assessee-applicant preferred an appeal before the Commissioner of Income-tax (Appeals), who vide order dated May 1, 1986, took into consideration the status of the two families and came to hold that Smt. Kiran Devi would have received 40 tolas of gold ornaments at the time of her marriage and the receipt of 50 tolas of gold ornaments in the family partition was satisfactorily explained with the evidence produced. The appellate authority expressed the view that in the partition the applicant’s brother, Dr. D. K. Jain, was also given similar amount of jewellery. He also referred to the statement of the applicant recorded before opening of the locker, wherein he had stated that there were 60 to 65 tolas of gold ornaments belonging to his wife kept in the locker. There was also reference to the statement of Smt. Kiran Devi that she received 40 to 50 tolas of gold jewellery at the time of her marriage. In view of the aforesaid reasoning the appellate authority came to hold that no part of the ornaments could be regarded as unexplained investment. However, he also held that the primary gold found could not be part of the ornaments received at the time of marriage and its acquisition by conversion could not be disbelieved. In this backdrop he sustained an addition of Rs. 14,169 being the value of the primary gold and deleted the remaining addition of Rs. 37,798 out of Rs. 51,967 made in the assessment.
5. Being aggrieved by the aforesaid, order of the appellate authority, the Department preferred an appeal before the Tribunal. It was contended before the Tribunal that the Commissioner of Income-tax (Appeals) had fallen into error in reducing the income from undisclosed sources. The applicant also filed a cross appeal challenging the retention of addition of Rs. 14,169 on account of primary gold. Both the appeals were heard by the Tribunal. Vide order dated July 9, 1991, the Tribunal allowed the appeal of the Department restoring the addition of Rs. 51,967 as made by the original authority and rejected the cross appeal of the assessee-applicant. After the order was passed by the Tribunal the applicant filed an application under Section 256(1) of the Act for referring certain questions of law to this court for answering the same. The Tribunal vide order dated December 18, 1991, dismissed the application expressing the view that the findings were based on the factual appreciation of facts and no question of law arose warranting reference to the High Court.
6. Assailing the aforesaid it is submitted by Mr. H. S. Shrivastava, learned counsel for the applicant, that on a proper appraisal of the evidence on record the Commissioner of Income-tax (Appeals) had accepted the gold ornaments weighing 664.900 gms., and the Tribunal has grossly erred by expressing the view that the Commissioner of Income-tax (Appeals) had no material before him to have tinkered with the order of the Assessing Officer. It is urged by him that the findings recorded by the Tribunal are not supported by the reasons and are contrary in terms and against the material on record and, hence, the matter requires to be referred to this court. It is submitted by Mr. Shrivastava, if for the sake of argument it is accepted that some of the ornaments did not belong to Smt. Kiran Devi in the strict legal sense as her streedhan, the remaining ornaments were the property of the Hindu undivided family of the applicant received in the family partition which Smt. Kiran Devi treated as her own and once the factum of partition had been accepted by the Commissioner of Income-tax (Appeals) the ornaments could not be held belonging to the applicant in his individual capacity. It is also canvassed by Mr. Shrivastava that Section 69A of the Act raises a rebuttable presumption that when the assessee had been able to rebut the presumption by adducing cogent and germane evidence the Tribunal could not have dislodged the finding of the appellate authority.
7. Mr. Rohit Arya, learned counsel appearing for the Revenue, per contra, supported the order passed by the Tribunal contending that the entire thing hinges on facts and no question of law arises and the grounds which have been urged do not partake of the commission of liability, despite the best efforts of the assessee. It is urged by him that four questions were urged before the Tribunal. Three questions have been put forth in this application and that clearly goes to show that as the assessee is absolutely unsure about the nature of the legal issue that arises in the case at hand and, therefore, the application deserves to be rejected.
8. At this juncture, we may proceed to advert to the nature of the application which was filed before the Tribunal for referring the questions of law to this court. On a perusal of the order passed by the Tribunal dealing with the application under Section 256(1) of the Act, it is manifest that the following questions were proposed for reference :
“1. Whether there was valid material to hold that the assessee was the owner of gold ornaments and the Kardouris ?
2. Whether the Tribunal was justified in law and had valid material to uphold that the assessment of the value of gold ornaments, primary gold and Kardouris under Section 69A of the Income-tax Act in the hands of the assessee ?
3. Whether the finding of the Tribunal that Smt. Kiran Jain did not receive the gold ornaments at the time of her marriage and was not the owner of gold ornaments and primary gold was unreasonable and irrational on the facts and evidence on record ?
4. Whether the finding of the Tribunal that the Kardouris did not belong to Rajaram is unreasonable and irrational ?”
9. In this context we may profitably refer to the three questions of law which have been put forth in the present application. They read as under :
“1. Whether, the finding of the Tribunal that Smt. Kiran Jain did not receive 40 tolas of gold ornaments at the time of her marriage and was not the owner of gold ornaments and primary gold is vitiated in law and is unreasonable and irrational on the facts and evidence on record ?
2. Whether, the Tribunal’s finding that the Commissioner of Income-tax (Appeals) had no material to accept that the applicant received 50 tolas of gold ornaments in partition is perverse and unreasonable and was the Tribunal right in law in reversing the finding ?
3. Whether, the Tribunal was justified in law and had valid material to uphold the assessment of Rs. 51,967 being the value of the gold ornaments and primary gold under Section 69A of the Income-tax Act in the hands of the assessee ?”
10. The crux of the matter is whether there has been perversity of approach by the Tribunal. Mr. Shrivastava, learned counsel for the applicant-assessee, would like us to scan and scrutinise the order of the Tribunal to find out that the Tribunal has approached the matter from erroneous angles and such an approach is not only unsustainable or tenable in law but is also contrary to the obtaining factual matrix.
11. Mr. Arya, learned counsel for the Revenue, on the contrary, has submitted that there is no error as the reasoning ascribed by the Tribunal is totally based on proper appreciation of facts. We may at this juncture clarify that certain citations were brought to our notice with regard to perversity of approach including the question of law being raised in an appeal and the status of the party after partition. We need not advert to the said issue as we are of the considered opinion that if we really dwell upon the factual matrix of the case it would be clear that the whole thing hinges on the appreciation of the facts. We have already indicated that the Department and the assessee both have filed appeals before the Tribunal. The Tribunal while dealing with the appeals in paragraph 7 of its order had held as under :
“7. After taking into account the submission of the parties and the entire materials placed before me, I am of the opinion that there was no material placed before the Commissioner of Income-tax (Appeals) to have tinkered with the order of the Assessing Officer whereby he has given sound reasons for holding that there is no evidence on record to suggest that Smt. Kiran Jain received 40 tolas to 50 tolas of gold ornaments at the time of her marriage. The Commissioner of Income-tax (Appeals) has not recorded reasons why he had interfered with the finding of the Assessing Officer. The Commissioner of Income-tax (Appeals) also failed to record reasons, giving benefit of 40 tolas to 50 tolas of gold ornaments. He has totally ignored the self-contradictory, vague and unreliable statement of Smt. Jain and Sh. R. K. Jain. The finding of the Commissioner of Income-tax (Appeals), in my opinion, is arbitrary, unfounded as the same is not supported by reasons. Under these circumstances, the finding of the Commissioner of Income-tax (Appeals) cannot be sustained and accordingly the order of the Commissioner of Income-tax (Appeals) is reversed and that of the Assessing Officer restored.”
12. On a perusal of the aforesaid reasoning we are of the considered opinion that the Tribunal has ascribed cogent reasons and the entire appreciation is based on the facts. We perceive no perversity of approach. Hence, we have no hesitation in holding that the facts and circumstances of the case do not warrant calling for the statement of facts from the Tribunal.
13. Resultantly, the application preferred under Section 256(2) of the Act stands
dismissed.