1. JUDGMENT : N. D. Ojha, J. - The original assessment in respect of asst. yr. 1964-65 of the opposite party under the WT Act (hereinafter referred to as the Act) was completed on 23-2-1967. The opposite party had for the said year, submitted his return on 19-5-1965. Subsequently a notice was issued by the WTO under s. 17 of the WT Act to the opposite party for re-opening the assessment on the ground that he had failed to disclose fully and truly all material facts necessary for assessment of his net wealth inasmuch as the amount of additional compensation in respect of acquisition of Tipra Estate, Dehradun, together with interest thereon had not been disclosed in the return. The opposite party, on the receipt of the said notice, appeared and showed cause. However, the WTO passed afresh order of assessment on 28-3-1979. Aggrieved by that order the opposite party preferred an appeal before the CIT (Appeals) Allahabad. The appeal was allowed and the assessment was set aside. The aforesaid order was challenged by the revenue in appeal before the ITAT (Allahabad Bench), (hereinafter referred to as the Tribunal). By its order dt. 25-11-1982 the Tribunal dismissed the appeal filed by the revenue. It pointed out that in Part IV of its original return the assessee had made a disclosure to the following effect :
Description of Asset
Reason why exemption is claimed
1. Amount receivable for acquisition of Tipra Estate, Dehradun.
1. Agricultural land
2. Amount was not ascertainable
The Tribunal also pointed out that even though by an award given by the Civil Judge on 30-9-1964 the opposite party had been found to be entitled to additional compensation, an appeal against the award of the Civil Judge had been filed by the Government which was pending on 19-5-1965 when the opposite party had filed his return. The Tribunal took the view that even though the proposition that interest income accrued in each year was undisputable it was not possible to hold that the amount of additional compensation and interest payable thereon was ascertainable on 19-5-1965. As already seen, emphasis was also placed by the Tribunal on the circumstance that the opposite party had in Part IV of the return specifically mentioned that the amount receivable for the acquisition of Tipra Estate, Dehradun, was not ascertain able. In this view of the matter the Tribunal held that it could not be said that the opposite party had not truly and fully disclosed particulars of the net wealth in his return filed on 19-5-1965. An application was thereafter made by the CWT under s. 27(1) of the Act for drawing up a statement of the case and refer the following questions to this Court for its opinion.
"1. Whether, on the facts and in the circumstances of the case, there was material before the Tribunal to hold that assessee had disclosed fully and truly all material facts at the time of filing the original return ?
2. Whether, on the facts and in the circumstance of the case, the order of the Tribunal is vitiated as it had failed to notice that the claim of additional compensation as well as interest was decreed much before the date of filing of the original return ?"
3. Whether, on the facts and in the circumstances of the case, the Tribunal is justified in holding that the re-opening was invalid ?"
This application was dismissed by the Tribunal by its order dt. 28-5-1983. The Tribunal took the view that the findings recorded by it in the appellate order were findings of fact and did not give rise to any question of law. The CWT then made the present application before this Court under s. 27(3) of the Act with a prayer that the Tribunal may be required to refer the aforesaid three questions for opinion of this court.
2. Having heard Counsel for the parties, we are of the opinion that on the facts of the instant case and the findings recorded by the Tribunal it is not possible to take the view that the aforesaid questions of law arise from the appellate order of the Tribunal. The finding recorded by the Tribunal are on the face of it, findings of fact based on material placed before it by the parties. This application, accordingly, dismissed but in the circumstances of the case there shall be no order as to costs.