COMMISSIONER OF INCOME-TAX Vs. DINESH KUMAR

JUDGEMENT

(1.) THIS is an application made by the Revenue (Commissioner of Income -tax) under Section 256(2) of the Income -tax Act, 1961, consequent upon the dismissal of their application made under Section 256(1) of the Act dated January 19, 1999, in R.A. No. 179/Ind/98 which in turn arose out of an order passed by the Income -tax Appellate Tribunal in an appeal decided on August 27, 1998, being I.T.A. No. (SS)60/Ind/96.

(2.) THE following two questions are proposed by the Revenue for being referred to this Court under Section 256(2) of the Income -tax Act: (1) Whether, on the facts and in the circumstances of the case and in law, the Tribunal's finding that cash of Rs. 14,00,000 found from the assessee stood explained is perverse and hence not justified? (2) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that if the assessee has maintained regular books of account for a particular assessment year, which were seized during the course of search and the assessee filed belated return of income under Section 139(4) of the Act for such assessment year after the date of search on the basis of the books of account then income of such assessment year cannot be treated as income from undisclosed income in spite of the specific provisions of Section 158BB(1)(c) of the Income -tax Act?

(3.) AT the outset, learned Counsel for the assessee has brought to our notice that a decision rendered by this Court on January 30, 1999, in I.T.R. No. 5 of 1999 and another decision rendered in I.T.A. No. 134 of 1999 decided on February 10, 2000. According to learned counsel, both these decisions arose out of the common order pertaining to the wife and son of the present assessee who were subjected to raid provisions under Section 132 of the Act. It was brought to our notice that these very questions are proposed at the instance of the two assessees arising out of the same case and this Court dismissed the applications made by the Revenue holding therein that the questions proposed are questions of fact and hence do not arise. In other words, the view taken by the Income -tax Appellate Tribunal dismissing the application made under Section 256 of the Act was upheld.