S.P Bharucha, J.:— The real question posed is whether the Appellate Tribunal was right in holding that the expenditure incurred by the assessee by way of freight and duty in transporting machinery received by it as a gift constituted a part of the actual cost of the asset.
2. Dr. Balasubramanian, learned counsel for the Revenue, opened his arguments by reading the questions and the statement of the case.
3. The statement of the case refers to what the Tribunal held by its order dated December 21, 1972. That order finds that many relevant considerations in regard to the question had not been considered by the authorities below. It, therefore, directed the Appellate Assistant Commissioner to determine these matters after hearing both sides.
4. The order was subsequently varied on a miscellaneous application filed by the assessee. The only mention of this order in the statement of the case is that the Tribunal had declined to refer a particular question raised by the Revenue “because the order by the Tribunal dated July 27, 1974, on the miscellaneous application filed by the assessee is based on admitted facts and agreed to both by the assessee and the Department”. This order is not before us.
5. It is patent that no answer can be given to the questions raised in this reference unless we know what these admitted facts are.
6. Not only has the Revenue not made any attempt over the years that have elapsed to bring this order on record but, even at this stage, they do not have copies of it.
7. Dr. Balasubramanian says that in this order the Tribunal has not considered any new facts but has only substituted some paragraphs, meaning thereby that the facts already referred to in the earlier order are sufficient to answer the questions. We are unable to proceed upon such a statement. This court proceeds upon the facts found and placed before it. No attempt has been made to place the facts found by the order dated July 27, 1974, before the court. Even when the hearing of the reference commenced, no application in this behalf was made. It was only when we were confused by the statement of the case and raised queries that Mr. Dastoor, learned counsel for the assessee, explained. We see no reason, in the circumstances, either to accept the belated application for an adjournment or to answer the questions in this reference upon incomplete facts before us.
8. The reference is returned with the questions unanswered.