R.N. Misra, J.
1. This is an application by the revenue under Section 256(2) of the Income-tax Act of 1961 (hereafter referred to as ' the Act'), for a direction to the Appellate Tribunal to state a case and refer the following question for opinion of the court :
' Whether, on the facts and in the circumstances of the case, the Tribunal is justified in deleting the inclusion of Rs. 8,000 as income from undisclosed sources and the findings arrived at are vitiated ?'
2. The assessee is an individual. The relevant assessment year is 1964-65. While examining the accounts of the assessee, the Income-tax Officer found introduction of cash credits of Rs. 12,000 in all of which Rs. 4,000 stood in the name of Sri Amarjit Singh, a minor son of the assessee, and a sum of Rs. 8,000 in the assessee's own name on August I, 1963. The assessee explained that Rs. 4,000 came as a gift to the grandson from Sri Attar Singh, who was plying trucks in Iran. In regard to the balance of Rs. 8,000, it was said to be the sale proceeds of a truck belonging to the assessee herself. It was further submitted that the assessee came from a respectable and wellplaced family and the explanation in relation to Rs. 8,000 should have been accepted.
3. The Income-tax Officer rejected the assessee's explanation and added both the amounts as income from other sources. The Appellate Assistant Commissioner sustained the additions. In further appeal before the Tribunal, it was held :
' With reference to the amount standing in the name of Sri Amarjit Singh, there is no evidence that the amount had been invested by the assessee in her minor son's name. The fact that the grandfather had plied a truck in Iran and thus had opulence cannot be ruled out. Particularly this aspect of the case was before the lower authorities. However, the departmental representative has submitted that the grandfather, Sri Attar Singh, immigrated to India some time in the year 1954 and till the year 1960, his method of occupation was unknown and hence the cashcredit should not be accepted. As pointed out, since the amount of Rs. 4,000 stands in the name of the minor son and it was not the case that the amount was invested by the assessee in the name of the minor son, it is difficult for me to sustain any addition as the assessee is not vicariously liable to explain the soufce of her minor son's investment. Apart from this, since Sri Attar Singh was in opulent circumstances, I accept the explanation for Rs. 4,000 standing in the name of Sri Amarjit Singh. With regard to Rs. 8,000, the plea of the assessee about the proceeds of the truck was raised before the Income-tax Officer but in the absence of any contemporaneous evidence regarding the ownership of the sale price of the truck, the explanation was rejected. Looking to the status of the assessee and the fact that she had a truck a certified copy wherefor has been shown to me, I have no hesitation to hold that the amount of Rs. 8,000 stands explained. Hence the addition is deleted.'
4. In regard to Rs. 4,000 standing in the minor son's name, no further dispute has been raised. According to learned standing counsel, there was no sufficient material before the Tribunal to accept the explanation furnished by the assessee in regard to Rs. 8,000. Undoubtedly, from the very beginning the assessee's explanation in regard to this sum was that it came out of the sale proceeds of a truck bearing No. O.R.C. 1201 which belonged to her. The Income-tax Officer did not accept the fact that the assessee had a truck in the absence of documentary evidence. Before the Tribunal a certified copy of the certificate of registration was produced to show the ownership of the truck. Once the ownership was established, the Appellate Tribunal accepted the assessee's statement that the truck had been sold in 1960 and the entire sale proceeds were left with the assessee's husband. This explanation has been accepted by the Tribunal. The matter must be taken to have been concluded by a finding of fact and the question which has been posed for reference is not one of law in the facts and circumstances of the case.
5. We, accordingly, reject the application, but make no order as to costs.
N. K. Das J.
6. I agree.