B. S. DHILLON J. - The assessee-firm consists of four partners. The assessment year commenced on April 1, 1970. The financial year is the previous year. The assessee maintained accounts on mercantile basis. As the assessee failed to file a return in compliance with a notice under s. 139(2) of the I.T. Act (hereinafter called 'the Act'), best judgment assessment was completed by the ITO on November 28, 1972, at a total income of Rs. 2,00,000. On appeal, the AAC reduced the said income to Rs. 1,40,000. The assessees contention before the Tribunal was that the ITO completed the assessment in an arbitrary manner without any data whatsoever. The Tribunal found that the assessment order that a notice under s. 212(3A) of the Act had been served on the assessee, asking him to pay advance tax at an income of Rs. 75,000. The Tribunal accordingly reduced the best judgment assessment from Rs. 1,40,000 to Rs. 75,000.
The assessee approached the Tribunal with the request that the following questions, which according to it, are questions of law, be referred to this court for opinion :
'(i) Whether there was any material on the record to determine the income of the assessee-firm at Rs. 75,000 ?
(ii) Whether in law the Income-tax Appellate Tribunal could draw an inference for estimating the income of the assessee-firm on the basis of a demand notice issued under section 210 of the Act and as to whether this could be made the basis for determining the estimated income at Rs. 75,000 ?
(iii) Whether before framing an assessment under section 144 of the Act, the provisos of sections 142, 143 and 69 of the Income-tax Act were complied with or not and whether the principles of natural justice have been complied with in the case or not before the framing of the assessment ?
(iv) Whether any notice was issued to the assessee-firm on November 28, 1972, on the day when the assessment was framed by the Income-tax Officer and as to whether all the proceedings initiated are nullity in view of the provisions of section 142 of the Act ?'
The Tribunal dismissed the application. This is how the assessee has now approached this court under s. 256(2) of the Act with the prayer that necessary direction be issued to the Tribunal to refer the above-mentioned questions for the opinion of this court.
We have carefully gone through the records of the case and after hearing learned counsel for the parties, we are of the opinion that the questions sought to be referred are not questions of law, but are questions of fact.
As regards the first question, it cannot be disputed that if, on certain materials, inferences have been drawn by the Tribunal, that will essentially be a finding of fact. The learned counsel for the assessee could not point out anything to show that there was absolutely no material on record to determine the income of the assessee-firm at Rs. 75,000. The finding, the subject-matter of this question, is essentially a finding of fact.
As to question No. 2, the learned counsel contended that since the assessee was not assessed to income-tax previous to the date when notice under s. 212(3A) of the Act was given, therefore, the notice was invalid and, thus, the notice could not be made the basis for determining the estimated income at Rs. 75,000. We are unable to agree with this contention. It cannot be disputed that the question sought to be referred must arise out of the order of the Tribunal. The plea that the petitioner was not a previous assessee and, thus, a notice under s. 212(3A) could not be issued for the payment of advance income-tax is essentially a question of fact, which plea was never raised before the Tribunal or for that matter before any authority. It is not open to us, sitting in this jurisdiction, to allow a new plea of fact to be raised and then to come to conclusion that a question of law would arise from that plea. Learned counsel could not point out anything from the record to show that any such plea was taken before the Tribunal. Moreover, a demand notice issued under s. 212(3A) to the assessee could not be held to be an irrelevant factor to be taken into consideration while arriving at the estimated income of the assessee. That being so, question No. 2 is a question of fact and not a question of fact and not a question of law.
Regarding question No. 3, the learned counsel could not point out that there was any material before the Tribunal on the basis of which it could be argued that the principles of natural justice have not been complied with or what the provisions of ss. 142, 143 and 69 of the Act were not complied with. The learned counsel for the assessee could not point out any material to justify that a wrong inference in law has been drawn by the Tribunal so as to hold that a question of law would arise. The Tribunal specifically observed in the order, rejecting the application, that no question as to violation of the principles of natural justice by the ITO or as to the assessment proceedings being a nullity in law was argued before the Tribunal in appeal. It has, therefore, to be held that this question does not arise out of the order of the Tribunal.
With respect to question No. 4, the learned counsel for the assessee-firm could not point out anything to show that no notice was issued to the assessee-firm on November 28, 1972, when the assessment was framed by the ITO. In fact, no argument was addressed regarding this question.
For the reasons recorded above, there is no merit in this petition which is hereby dismissed. There will be no order as to costs.