1. All these five reference applications have been filed under Section 256(2) of the Income-tax Act, 1961. They relate to the assessment years 1967-68, 1968-69, 1969-70, 1970-71 and 1971-72. As a similar question is involved in all these reference applications, they are being disposed of by this common order.
2. On August 23, 1985, the petitioner was directed by this court to file certified copies of the orders of the Income-tax Officer and the Appellate Assistant Commissioner of Income-tax. No such copies have been filed and none is present on behalf of the assessee-applicant.
3. The assessee, M/s. Rajasthan Textile Industries, Kishangarh, is a partnership firm which consists of partners, namely, Devendra Kumar, Moolchand and Smt. Keval Devi. This firm awarded sole selling agencyfor selling sized beams produced by it to M/s. Luhadia Brothers, a proprietary concern of Mrs. Ratan Devi, who was the wife of one of the partners, Devendra Kumar. Smt. Ratan Devi was conducting business of sales' through an expert and a person experienced in the line, Madanlal Sethi who happened to be her sister's son. Nirmal Kumar, son of Smt. Ratan Devi, was also assisting her in the business. Then, the selling agency of M/s. Aditya Mills Ltd. was also awarded to Smt. Ratan Devi, i.e., M/s. Luhadia Brothers. Apart from this agency business, Smt. Ratan Devi was also running other business of yarn and was running 10 power-looms. This business was considered to be the genuine business of Smt. Ratan Devi by the Revenue and she was held competent to run and supervise this business.
4. While making the assessment for the assessment years, the Income-tax Officer held Smt. Ratan Devi to be benamidar of the assessee-firm, M/s. Rajas-than Textile Industries. Against that order, the assessee preferred an appeal before the Appellate Assistant Commissioner of Income-tax, Jaipur, who accepted the appeal of the petitioner and set aside the order of the Income-tax Officer. Against the judgment of the Appellate Assistant Commissioner, an appeal was preferred before the Income-tax Appellate .Tribunal by the Revenue. The said appeal was accepted, the order of the Appellate Assistant Commissioner was set aside and the order of the Income-tax Officer was restored. After that, the assessee moved an application before the Appellate Tribunal to make a reference to the High Court. That application was also rejected by the Income-tax Appellate Tribunal. The assessee-petitioner then moved the present reference application under Section 256(2} of the Income-tax Act before this court.
5. Mr. Surolia, learned counsel for the Revenue, argued that the points mentioned in the reference applications by the assessee are points of fact and no law point is there as regards the assessment years and, therefore, no question of law arises out of the order of the Income-tax Appellate Tribunal for making reference to this court.
6. The petitioner, the assessee-firm, has framed the following questions of law, which, according to it arise out of the order of the Income-tax Appellate Tribunal:
'1. Whether, on the facts and in the circumstances of the case, there was material for the Tribunal to hold that Ratan Devi was a benamidar of the assessee-firm ?
2. Whether there was any material for the Tribunal to hold that no services were rendered by Ratan Devi when it has been accepted by the Department that more than 80% has been spent in earning that incomeon salary, telephone, etc., and the Revenue failed to record the statement of Madanlal and son of Ratan Devi ?
3. Whether, on the facts and circumstances of the case, the Tribunal was justified in reversing the finding of the Appellate Assistant Commissioner that the Department has failed to establish on the basis of material facts that Smt. Ratan Devi was a benamidar ?
4. Whether the fact that the Revenue itself in the case of Ratan Devi in later years assessed the income on regular basis and not on protective basis in respect of commission income could be ignored by the Income-tax Appellate Tribunal ?
5. Whether the Tribunal could hold that Ratan Devi was benamidar when an Income-tax Officer himself was taking a contradictory stand and disallowed the commission payment under Section 40A(2)(a).
6. Whether the Tribunal's order is erroneous for want of proper enquiry about commission payments made to Ratan Devi from time to time during the year which was made on the last day of the accounting year as per prevailing practice ?
7. Whether the Tribunal was justified in confirming the disallowance of gross commission payment when the Revenue itself has accepted in appeals filed in the case of Ratan Devi before the Tribunal that only net income could be added. It should have directed the Income-tax Officer to determine the net income and then add it ?
8. Whether the Tribunal should have held the assessment to be invalid since its directions in the order dated March 20, 1978, were disregarded by the Appellate Assistant Commissioner in not himself deciding the issue but setting it aside to be made de novo '
7. The only question involved in these applications is as to whether Smt. Ratan Devi was a benamidar of the assessee-firm, and as to whether this point is a question of fact or a question of law.
8. In Addl. CIT v. Usmanbhai Islawbhai Tonk, the point was about some cash credit entries which were found in the account books of the assessee. In that case, it was observed that the burden lay on the assessee to show that the cash credit entries found in the books of account (sic). Then, it was for the assessee to offer an explanation, but it was equally clear that it was for the Income-tax Officer and later for the Appellate Assistant Commissioner and the Tribunal to accept or reject the explanation. In the present case, it is alleged that Smt. Ratan Devi was not a benamidar of the assessee-firm. The facts show that she is the wife of Devendra Kumar, one of the partners of the assessee-firm. It was for the assessee to prove that she was not a benamidar, but she was running her businessindependently, and that she was being paid commission for the sale. This fact as to whether Smt. Ratan Devi was a benamidar of the assessee-firm, was a question of fact which has been proved by the assessee. The Income-tax Officer, after appreciating the entire evidence and the material on record, held that Smt, Ratan Devi was a benamidar of the assessee-firm. This fact was affirmed by the Appellate Tribunal also. The learned Tribunal in its. judgment has discussed the close relationship of Smt. Ratan Devi with the partners of the assessee-firm. She, being an illiterate lady, could not conduct the business herself and this point has also been discussed by the Tribunal. It was also discussed by the Tribunal that the commission was paid on the last date of the year. It has also discussed the strained relationship between Smt. Ratan Devi and Devendra Kumar, one of the partners of the assessee-firm. The Tribunal has also discussed in its judgment the alleged strained relationship between the partners of the assessee-firm and so also between Smt. Ratan Devi and the other partners of the assessee-firm. The relevant record was also considered by the learned Tribunal and after appreciating the entire record the Tribunal held that Smt. Ratan Devi was a benamidar of the assessee firm.
9. So, on the question of fact, there is a concurrent finding of the Income-tax Officer as well as the Tribunal.
10. In Karamchand Thapar and Bros. Pvt. Ltd. v. CIT : 80ITR167(SC) , it has been observed as under (at p. 171) :
' In our opinion, it was wholly impermissible for the High Court to disturb the findings of fact reached by the Tribunal. The Tribunal was the final fact-finding authority. The facts found by it could have been challenged only on certain recognised grounds. Neither the High Court nor this court has jurisdiction to reappreciate the material on record to find out whether the facts found by the Tribunal are correct or not. The High Court should not have taken upon itself the responsibility to go into the question whether the findings of fact reached by the Tribunal are correct. The only question that the High Court was called upon to determine was whether on the facts found by the Tribunal, the receipt in question should not have been considered by the Tribunal as revenue receipt. '
11. In Dulichand Omprakash v. CIT : 113ITR476(Cal) , it has been held as under (headnote):
' The Appellate Tribunal found that the cash credits appearing in the books of the assessee were not genuine and that the person who advanced loans to the assessee was a name-lender and was earning a paltry sum of Rs. 5,000 to Rs. 6,000 annually, that the credit worthiness of the lenderhad not been established and his confession that his loans were all bogus had not been retracted by his subsequent evidence and that the genuineness of the loans from the lender to the assessee was not established and, therefore, upheld the additions made by the Income-tax Officer of the cash credits, appearing in the name of the lender, to the income of the assessee. On a reference of the question whether the finding of the Tribunal was perverse :
Held, that the finding arrived at by the Tribunal was not perverse in the sense that no reasonable person would come to it on the materials on record. Though, on the same materials, it was also possible to come to a different conclusion in the reference jurisdiction, the High Court was not competent to find facts for itself. '
12. After considering the arguments of learned counsel for the Revenue, we are of the opinion that the question as to whether Smt. Ratan Devi was a benamidar of the assessee-firm or not, is a question of fact, and this question of fact has been discussed by the Income-tax Appellate Tribunal, in detail, in its order, and this court is not competent to go into that finding of fact. The points for reference made by the assessee are all questions of fact. No question of law arises out of the order of the Appellate Tribunal which needs reference to this court by the assessee-firm.
13. As this court has no jurisdiction to go into the findings of fact, the reference applications are, therefore, hereby dismissed.