This is an application under Section 66 (3) of the Indian Income-tax Act of 1922. The facts giving rise to this application may be stated :
The assessee who is the applicant before us is a Hindu undivided family dealing in gain, money-lending and commission agency business. The assessment year in which is in dispute in these proceedings is 1938-39. In compliance with a notice a return was made by the assessee to the effect that his income for the previous year was Rs. 6,000 odd. The income-tax Officer was not satisfied with the correctness of this return and, therefore, he issued notices under Section 22 (4) and 23 (2). These notice were complied with, but the Income-tax Officer issued another notice under Section 22 (4). It appears that the Department got some information from other traders that certain sales and purchases had been made by the assessee but they had not been entered in the books produced by the assessee. The notice under Section 22 (4) was, therefore, a notice demanding from the assessee the production of his genuine accounts. No such accounts were submitted, and the Income-tax Officer was of the opinion that a default had been made. He, therefore, on the 14th May 1939 made an assessee was Rs. 23,400. This Income-tax Officer distinctly says in his order that the assessment is under Section 23 (40 of the Act.
There was an appeal to the Assistant Commissioner and there was also an application to the Income-tax Officer under Section 27 of the Act. The Income-tax Officer rejected the application under Section 27 of the Act. The assessee filed an appeal against that order as well.
The position, therefore, was that there tow appeals before the Assistant Commissioner, one against the order under Section 23 (4) and another against the order under Section 27. The Assistant Commissioner disposed of these two appeals on the 18th of October 1939, by separate orders, but in either case the appeals were dismissed.
There was then an application under Section 33 of the Act asking the Commissioner to exercise his powers and to grant proper relief to the assessee and in the alternative an application under Section 66 (2) of the Act praying that the Commissioner should state a case for this Court and formulate certain questions of law. The Commissioner refused to grant an relief under Section 66 (2) of the Act he was of the opinion that the question invloved were pure question of fact and should not be referred to this Court. This was no the 27th September 1940.
It is by reason of this last order of the Commissioner that an application has been filed before us under Section 66 (3) of the Act. We have heared Mr. Malik at length and we find that the only question which is involved in these proceedings is the question whether the Income-tax Officer was justified in his opinion that the assessee has another set of account book which he did not produce before the Income-tax Office. The matter was pre-eminetly within the discretion of the Income-tax Officer. It is not possible for this Court to say that the Income-tax Officer had no materials whathsoever for coming to the conclusion that the assessee had a separate set of question of law have been formulated in the application before us they are really repetitions of the one question whether-
'there was any evidence on the record to justify the findings of the Income-tax Officer or the learned Assistant Commissioner of Income-tax, that the assessee maintained another set of accounts which the Income-tax Officer or the Assistant Commissioner called genuine account books.'
This is a pure question of fact and no case can be referred to us on this question under Section 66 (3) of the Act. We accordingly dismiss this application with costs. The learned Advocate-General is entitled to a fee of Rs. 75.