COMMISSIONER OF INCOME TAX Vs. RAM AMAR NATH

JUDGEMENT

(1.) This is an application under section 66 (2) of the Income-tax Act praying for a mandamus directing the Income-tax Department to state a point of law for the opinion of this court.

(2.) The question whether there is or there is not material to sustain the finding is generally considered to be a question of law, but all the reported cases show that the question of law arose when the High Court was of the opinion that there was really no evidence whatsoever upon which a positive finding holding the assessee liable in respect of certain transactions could be arrived at. Not a single ruling of the other kind or a converse case has been cited before us in which it was held that although there was some material before the income-tax authorities and upon a consideration of that material a negative finding in favour of the assessee was arrived at, the High Court could hold this to be a question of law in order to re-examine the whole case. The reason for this is that where the High Court takes the view that there is no evidence (and this can easily be determined from the record), then it will be a question of law that in the absence of such evidence no finding against the assessee could have been arrived at. But in the contrary case, where there is some material and the existence of such material is admitted on all sides, then the finding which is arrived at is a pure finding of fact depending upon the assessment of evidence produced before the income-tax authorities. In such a case even though the findings are wrong, it is not a case which can be examined on a mandamus issued to the department, as an erroneous finding of fact can never be considered to be a question of law. Where a finding has been arrived at, then it is clearly a question of fact.