' MAHBOOB AHMAD, J.--This reference under Section 136 (2) of the Income Tax Ordinance, 1979 prays for formulation of two question viz:
(1) Whether on facts and circumstances of the case, the Appellate Tribunals' decision accepting the alleged loan of Rs,6,00,000 from Mr. Anwar All Khan Baluch is based on proper and valid evidence in law?
(2) Whether in the circumstances of the case, the acceptance of the alleged loan of Rs,6,00,000 is vitiated by the Appellate Tribunal's omission and failure to consider the pertinent facts and evidence whereupon the said loan was rejected by the Income Tax Officer? ' for answering the same as those raised points of law arising out of the order of Income Tax Appellate Tribunal dated 1-6-1986 in I.TA. No,5584/LB/1985-86 in connection with the assessment of respondent for assessm ent year 1978-79. The statement of facts as given in the petition is that the respondent, a registered firm,derived income from sale and repair of weighing equipments.
Assessm ent for the year 1978-79 was originally completed on 30-6-1981 at a total income Rs,7,30,985 which included a sum of Rs,6,00,000 as the add-back made by the Income Tax Officer.
This add-back was the cash credit shown by the assessee the return. The aforementioned assessm ent was set aside by the Commissioner Income Tax (Appeal) by his order dated 9-5-1982, and the case was remanded for re-exmination of the add-back of the cash credit aforementioned.
The Income Tax Officer re-made the assessment on 30-6-1983 and maintained the tot income at Rs,7,30,985. The appeal taken against this fresh assessment to the Commissioner of Income Tax (Appeals) succeeded and the assessment order to the above extent was set aside holding that the Income Tax Officer did not make any effort to confirm the credit worthiness of creditor shown by the assessee. The Income Tax Officer again completed the assessment on 30-6-1985 and still maintained the total income at the same figure. He again disallowed the case credit amount of Rs,6,00,000. The respondent preferred yet another appeal before the Commissioner of Income Tax who vide his order dated 28-1-19 accepted the appeal and deleted the addition of Rs,6,00,000 by observing under: "The creditor appeard before the assessing officer and his statement was recorded on 29-5-1985.
He admitted that he had been selling his agricultural land near Faisalabad city and that he and his family members had advanced some loans to the appellant firm. Some of his family members were also partners in the firm. The assessment record shows that the appellant firm was either showing losses or nominal profits and nobody would advance such huge loans to a losing concern However, it has been admitted by the Assessing Officer that Mr. Anwar Ali Khan Baluch spent lacs of rupees on his election campaign. This shows that he was man of means. He owned substantial land and also appeared before the assessing officer in verification of the loan advance by him.
Thus the loan advanced by him at Rs,6 lacs for this year is accepted as genuine. This addition is, therefore, deleted."
' The department feeling aggrieved by the order of the Commissioner of Income Tax preferred an appeal before the Income Tax Appellate Tribunal. The Tribunal by its order dated 1-6-1986 dismissed the appeal of the department. The main premises of the Tribunal's order in dismissing the appeal of the department is in its own words as under: "After considering the arguments we are inclined to maintain the order of the learned C.I.T. (A) for the assessm ent year 1978-79 under which he deleted the addition of Rs,6,00,000. Mr. Anwar Ali Khan Baluch is a respectable person being an MNA and being a big landlord, his statement could not be disbelieved. The Assessing Officer's objection as to why Mr. Anwar Ali Khan Baluch who advanced such huge money without consideration is completely belied by fact that 50% share in the firm of the assessee belongs to Mr. Anwar Ali Khan Baluch's close relatives. We, therefore, see no reason to interfere in the order of the learned C.I.T. (A). The Departmental appeal for the assessment 1978-79 is dismissed."
' Still dissatisfied the department filed an application under section 136 (1) of the Income Tax Ordinance, 1979 before the Income Tax Appellate Tribunal with the prayer to refer the first mentioned two questions to the High Court for answer. This request of the department was also not acceded to by the Income Tax Appellate Tribunal and it refused to make the reference by its order dated 24-41988 holding that from the perusal of the above facts it is evident that both the questions which are required by the Commissioner of Income Tax to be referred to the High Court are questions of fact and, therefore, cannot be referred to the High Court for its opinion. Hence the present reference by the department before this Court.
3. Learned counsel for the petitioner has raised the following two contentions: ' Firstly that the reasons given by the Income Tax Officer in his order for disallowing the cash credit to the respondent assessee have not been completely considered by the higher forums of the hierarchy which has resulted in a wrong decision in law; and ' Secondly that it was for the assessee under section 13 of the Income Tax Ordinance, 1979 to prove that the cash credit shown by it in the return was a genuine cash credit.
4. The contentions raised on behalf of the petitioner do not appear to have force. Taking the first contention it may be observed that the Commissioner of Income Tax as well as the Income Tax Appellate Tribunal have duly considered the impugned order of the Income Tax Officer before them and came to a finding concurrently different from that of the Income Tax Officer. The question whether a particular figure has to be admitted as cash credit is essentially a question of fact and a finding thereon if made by any forum in contrast to the finding of a lower forum of the same hierarchy would not make it a question of law especially when the reasons given by the higher hierarchy are legitimate inferences that can be drawn from the attendant circumstances of the case.
5. We may also point out that it is not necessary for a higher forum while disagreeing with a lower forum to discuss each and every point made as a basis in the order of the lower forum. It may well be that some points though specially dealt with by the lower forum are otherwise of a trivial nature and the higher forum while deciding the appeal against the order of the lower forum is of the view that those points need not be dealt with separately as the same may not have a material bearing on the ultimate decision that the higher forum is likely to make. Before us it has been canvassed that the Income Tax Officer had given cogent reasoning while disallowing the cash credit in question by observing that when the sale of land amounted to only Rs,6,00,000 how could a cash credit of higher figure be considered legitimate. It was pointed out to the learned counsel that although we are not inclined to enter into this controversy in detail yet on a plain reading even it can be safely seen that the cash credit given by Anwar Khan Baluch to the assessee was not specifically stated to be the sale price of plots of land only but while disclosing the source from which the cash credit was afforded to the assessee the said Anwar Khan Baluch had shown that he had not only sold plots of land worth Rs,6,00,000 during the period in question but his family also owns more than 20 squares of land and obviously have a considerable income there from. It cannot, therefore, be said that the person who loaned the amount to the assessee was a man without means. In this view of the matter no exception can be raised against the order of the Commissioner of Income-tax as affirmed by the Income-tax Appellate Tribunal that the assessee could not be deprived of the cash entry in his return.
6. Adverting now to the other contention raised on behalf of the petitioner we suffice by observing that there ought not be any cavil with the submission that under section 13 of the Income-tax Ordinance, 1979 an unexplained investment etc., has to be deemed to be an income in the circumstances narrated in the sub-clauses but then if the assessee explains the source of input in his business and the source also confirms having afforded the input, there is nothing left for the assessee to be done unless the department then shows that the explanation offered is palpably incorrect. In the case in hand the assessee was called upon to show the source of cash credit. He not only disclosed the source but the person from whom he had obtained the cash credit came forth himself and made a statement categorically confirming the affording of the cash credit and also disclosing his own source therefor. In the above circumstances it cannot on any valid premises be successfully contended that the source remains unexplained or that the assesse has not discharged the onus as required to be done by law. The above discussion manifestly shows that the questions raised before us and asserted as questions of law arising out of the order of the Income Tax Appellate Tribunal dated 1-6-1986 in no manner can be termed as questions of law referable to the High Court.
7. In view of the foregoing discussion this Reference has no merit and it is accordingly dismissed in limine.