1. The question referred to us by the Income-tax Appellate Tribunal is as under :
'1. Whether, on the facts and in the circumstances of the case, the sum of Rs. 2,55,500 being the value of the gold in question, was liable to be taxed in the hands of the assessee under section 69 of the Income-tax Act, 1961 ?'
2. We would like to reframe the question although we are conscious that the question as reframed takes within its compass the further question which was proposed by the Revenue which was specifically disallowed. The question as reframed by us will read as under :
'Whether, on the facts and in the circumstances of the case, the sum of Rs. 2,55,500 being the value of the gold in question, was liable to be taxed in the hands of the assessee ?'
3. Both in the statement of the case as well as in its appellate order, the Tribunal has very lucidly set out the facts as well as the respective arguments of the Department and those urged on behalf of the assessee. However, after considering these arguments in which the Department seems to have relied on s. 69 only and ignored s. 69A, the Tribunal found in favour of the assessee and this discussion is found in para. 9 of the appellate order. A major portion of this paragraph is reproduced in paragraph 9 of the statement of the case.
4. In this case, the departmental representative had very properly apprised the Tribunal of various aspects of the matter such as contradictions in the assessee's case from time to time, improvements made by him in his statement given to the customs authorities, the enquiries made with the ITO at Rajasthan and the report submitted by the said officer. On the basis of this mass of facts, the departmental representative had urged that it had to be held that the assessee was the owner of the seized gold and was, accordingly, liable to be assessed on the value thereof on the footing that the value represented his income assessable for the year relevant to the assessment year 1962-63.
5. Mr. Joshi has pointed out to us that in Gordhandas Hargovandas v. CIT : 126ITR560(Bom) , this court had occasion to deal with s. 69A of the I.T. Act, 1961. In the said decision J. S. Parkar v. V. B. Palekar : 94ITR616(Bom) had been explained and applied.
6. Having gone through the said decision and particularly the portion of the judgment commencing from page 577 onwards, we are of the opinion that in the present matter the Tribunal has not given the necessary and proper factual findings on the question that arose for determination before it. It had to decide on the basis of the available material, which was brought to its notice very properly by the departmental representative, whether the assessee could be properly regarded as the owner of the gold found with him. In coming to this conclusion, the Tribunal would have to consider the conduct of the assessee, the different explanations given by him from time to time, the contradictions in his statements and the truth or falsity in such statements as may by established by the material on record. Taking an overall view, the Tribunal would have to come to the conclusion one way or the other. In a sense, the onus would be on the Department to establish that the assessee is required to be regarded as the owner of the seized goods. This onus has to be established as in an ordinary civil trial and no more. To put it briefly, we are clearly of the opinion that the approach of the Tribunal, as indicated in paragraph 9 of the appellate judgment, which is also extracted in paragraph 9 of the statement of the case, is not the proper approach and is contrary to the modalities which we have indicated in Gordhandas Hargovandas v. CIT : 126ITR560(Bom) .
7. Undoubtedly the Tribunal is the final fact-finding body and ordinarily if after considering the matters in the proper perspective and after surveying all material which is available to it, the Tribunal arrives at some conclusion one way or the other that conclusion would have to be respected, unless it can be regarded as impossible or perverse. Our difficulty is that we find no clear conclusion one way or the other. The conclusion reached by the Tribunal in paragraph 9 of its appellate order is not proper and does not address itself to the points to be properly considered by it as indicated by us above and in our earlier decision. Once the conclusion is reached, it is impossible for us to answer the question. Accordingly, making these observations which would require reconsideration by the Tribunal of the material available to it and arrival at a proper conclusion, we return the reference without answering the question referred to us.
8. There will be no order as to costs of the reference.