D.K. Kapur, J.
1. Five questions have been proposed in this reference application under section 256(2). We have examined the questions, heard the learned counsel and also examined the order of the Tribunal rejecting the petition under section 256(1) as well as the appellate order out of which the questions of law are stated to have arisen.
2. We are of the view that question No. 1 is a question of fact. As far as question No. 2 is concerned, the Tribunal has held it to be covered by the judgment of the Supreme Court in Varghese v. ITO : 131ITR597(SC) . thereforee, it need not be referred. However, learned counsel urged that this could be covered by reference to section 52(1) of the Income-tax Act, 1961. We are unable to accept that this was the view of the Income-tax Officer at any stage. So, this question appears to be academic.
3. As far as questions Nos. 3 and 4 are concerned, they relate to alleged cash credit recorded in the assessed's book. The Tribunal was of the view that the onus had been discharged by producing conforming documents such as affidavits, etc., and there had been a failure by the Income-tax Officer to examine some of the persons whose credits had been rejected. Learned counsel pointed out that some of these persons were different from those shown in the books of the assessed and hence this was a question on which the Income-tax Officer need not have examined the witnesses and he could have held that the cash credits were explained without examining the evidence. We are of the view that when an Explanationn is offered by the assessed regarding the cash credits appearing in his books, if the evidence is shut out and the witnesses produced are not permitted to explain the credit, it will be open to the Tribunal to appraise the evidence as it is and reach it own conclusion which may result in the cash credit being accepted as genuine. It is desirable that all the evidence should be on record to prevent any miscarriage of justice on this question. Learned counsel stated that the Tribunal should have remanded the case to the Income-tax officer for re-examining the witnesses who had previously not been examined. This, of course, was one course which a court of fact could adopt but it was equally open to the court to hold on the facts that the cash credits stood explained. We do not think the question of law now survives.
4. Turning now to the last question regarding half interest on bank deposits, we think the answer to the question is self-evident. For one thing, the bank deposits were in the joint names of husband and wife and there is no material on record to show who earned the money which was deposited, nor is there any material to show that the money belonged more to the husband than to the wife. Furthermore, the wife has been assessed on half the interest at least in one year in her own assessment and she is admittedly owner of half the house which is the subject-matter of question No. 1 and 2 above. We, thereforee, think that no question of law arises.
5. The application is dismissed with costs. Counsel's fee Rs. 250.