Oza, J. - This is a reference made by the ITAT, Indore for answering the following question :
'Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the income derived by the assessee from interest on securities was exempt as per provisions of section 80P(2)(a)(i) of the Income-tax Act, 1961 in respect of the asst. yrs. 1967-68 to 1973-74 ?'
2. It appears that the assessee, the Cooperative Bank, had some deposists and the ITO did not exempt it from tax u/s 80P(2)(a)(i). But the AAC on appeal held that these deposits were banking assets and the income therefrom will be banking income and will be exempt u/s 80P(2)(a)(i) of the IT Act and the same view have upheld by the Tribunal and, therefore, at the instance of the department, this reference has been made by the Tribunal to answer the question referred to above.
3. It appears from the order of the Tribunal that it is not clear as to what was the nature of these deposits and what was the duration for which these deposits were made and whether they could be termed as securities as contemplated u/s 24 of the Banking Regulations Act. It appears that the factual findings about these deposits and their nature have not been determined by the Tribunal while deciding the appeal and the question has been referred as to whether the income from these deposits would be taxable or will be exempt u/s 80P(2)(a)(i) of the IT Act, 1961.
4. The ld. counsel for the department and the assessee also were not in a position to refer to any part of the judgment of the AAC or the Tribunal which will show the determination of the questions of fact pertaining to there deposits with regard to their nature, term and the income derived therefrom. In this view of the matter, therefore, in our opinion, the reference is not proper and we feel that the question could only be answered after the appropriate facts necessary for answering the question are ascertained and determined by the Tribunal which is the final court of facts for these purposes. Thus, in exercise of jurisdiction u/s 258 we direct the ITAT to ascertain these facts and after determining the facts, send a supplementary statement of the case so that the reference may be answered and for this purpose, it is further directed that the Tribunal shall send the supplementary statement within 4 months from today. The ld. Tribunal shall afford an opportunity to both the parties to place material and also to address so that the question about these securities could be ascertained and determined.