B.P Jeevan Reddy, C.J:— By this application under S. 256(2) of the Income-tax Act, the assessee is seeking to raise the following five questions:
1. Whether on the facts and circumstances of the case, the Tribunal is legally justified in upholding the additions of Rs. 2,07,023.00 towards the value of the jewellery, in the hand of the applicant under S. 69-A of the Income tax Act?
2. Whether on the facts and in the circumstances of the case, the Tribunal was legally justified in holding that there has been no proper explanation as to the nature and source of acquisition of jewellery of the value of Rs. 2,07,025?
3. Whether on the facts and in the circumstances of the case, the Tribunal was legally justified in holding that the identification of seized jewellery could not be an evidence person of the ownership of the jewellery (sic)?
4. Whether on the facts and circumstances of the case the Tribunal is legally justified in raising the presumption under S. 132(4-A) against the applicant?
5. Whether on the facts and in the circumstances of the case, the Tribunal was legally justified in upholding the inference that the explanation and the evidence was an afterthought?
2. So far as question No. 1 is concerned, it was not raised in the application under S. 256(1) and moreover it is only a general question. It cannot, therefore, be referred.
3. So far as questions Nos. 2, 3 and 5 are concerned, they relate to the same factual issue, namely, whether a particular jewellery found during the search of the assessee's premises under. S. 132 of the Act belonged to him or to a third party. At the time of search, he or his wife did not give any explanation with respect to the said jewellery.
4. Some days later, they came forward with the story that the said jewellery belonged to one Mrs. Kripal Das, who was related to the assessee. Kripal Das and his wife also corroborated this statement but the authorities refused to accept this version and applied S. 69-A. This is a pure finding of fact and there is no reason to refer the said questions.
5. Question No. 4 raises an alternative contention namely, that even if the value of the said jewellery is to be included in the income under S. 69 A, should it be included in the assessee's income or in his wife's income. This question, we are satisfied on the facts and circumstances of the case, is one of law and ought to be referred under S. 256(2) of the Act. Accordingly, question No. 4 is referred, but it is reframed in the following terms
“Whether on the facts and in the circumstances of the case, the Tribunal is justified in law in holding that the value of the jewellery in question should be included in the assessee's assessment and not in the wife's assessment when the said jewellery is recovered from the room in possession of assessee's wife.”
6. The application is allowed in part. Accordingly, question No. 4 shall be stated under S. 256(2) of the Act. No costs.
7. Application allowed in part.