1. ' SALEEM AKHTAR, J.--This judgment will dispose of these three income-tax cases between the same parties in which common question of law is sought to be raised by the Department. The respondent was a director m four companies. He submitted his return of income but the Income- Tax Officer did hot treat him as an employee within the meaning of Rule 39 (3) of Income Tax Rules for allowing exemption of perquisite. Instead, the Income-tax Officer applied Rule 39 (2) of the Income Tax Rules and framed the assessment. The respondent filed appeal directly to the Tribunal in respect of assessm ent years 1968-69, 1969-70 and 1970-71 which were disposed of by a single order dated 7-31978. In the order it was observed that the Income Tax Officer treated the respondent as employee upto the assessment year 1967-68 but from 1968-69 onwards he termed him as a director and not an employee within the meaning of Rule 39, rub-rule (2). The finding of the Tribunal was that Income Tax Officer had allowed earned income relief upto Rs,6,000 and thus assessed the respondent as an assessee drawing salary. The appeal was allowed. The applicant then filed application under section 66 (1) for referring to the High Court the following questions: (i)Whether, on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was justified in directing the Income Tax Officer to apply sub-rule (1) of Rule 39 of the Income Tax Rules, in the cages of the director not working whole time for one company within the meaning of Rule 39 (3) (b) of the Income Tax Rules 1923?
2. (ii)Whether, on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in deleting the addition of Rs,23,200 which was added under Rule 39 of the Income Tax Rules by the Income Tax Officer?"
3. ' The learned Tribunal observed that the question whether a person was whole time or a part time employee is a finding of fact which does not require any interpretation of any provision of law or rule. The application was accordingly rejected. The applicant has filed application under section 66
(2) praying that the aforestated questions may be framed and answered by the Court.
4. ' Mr. Shaikh Haider the learned counsel for the applicant while referring to section 12 of the Income Tax Act and Rule 39 (1) & (3) of the Income Tax Rules contended that the respondent could not be treated as an employee, because he was not a whole time employee but a part time employee. In this regard he has referred to 1988 PTD 563. Mr. Sirajul Haq the learned counsel for the respondent has contended that the entire question revolves on a finding of fact given by the Tribunal which has not been challenged, therefore, the application cannot be granted.
5. ' From a perusal of the order of the Tribunal it is clear that it has given a finding on a question of fact whether the respondent is a whole time employee or a part time employee. This finding of fact is the basis of the order passed by the Tribunal. Therefore, unless this finding has been challenged by the applicant the above question can hardly be raised. The question as framed does not challenge the finding of fact on the ground that it has been made without any material on record or that there is no evidence to support it. In fact the question proceeds with the words "whether on the facts and in the circumstances of the case which phraseology suggests that the facts and circumstances as decided by the Tribunal have been accepted. By this phraseology the finding of fact is not sought to be challenged by the applicant. It has become a growing practice that the questions are framed in this fashion without realising its implication and at the time of argument under the shelter of this term attempt is made to attack the finding of fact of the Tribunal. In our view unless a specific question has been framed challenging the finding of fact, merely by referring to the facts and circumstances of the case, as in the present case, the finding of fact remains unchallenged. When a reference is made to the facts and circumstances of the case without challenging the finding then it means that the case is to be considered on the basis of the finding of fact and circumstances as decided by the Tribunal. Therefore, unless this finding has been challenged by the applicant the above question can hardly be raised. The question as framed does not challenge the finding of fact on the ground that it has been made without any material on record or that there is no evidence to support it. In fact the question proceeds with the words "whether on the facts and in the circumstances of the case. "
6. ' Which phraseology suggests that the facts and circumstances as decided by the Tribunal have been accepted. By this phraseology the finding of the fact is not sought to be challenged by the applicant. It has become a growing practice that the questions are framed in this fashion without realising its implication and at the time of argument under the shelter of this term attempt is made to attack the finding of fact of the Tribunal. In our view unless a specific question has been framed challenging the finding of fact, merely by referring to the facts and circumstances of the case, as in the present case, the finding of fact remains unchallenged. When a reference is made to the facts and circumstances of the case without challenging the finding then it means that the case is to be considered on the basis of the finding of fact and circumstances as decided by the Tribunal. The Court has to guard against the tendency where attempt is made to obtain verdict on mixed question of law and fact the assailability of which depends on the finding of fact which has not been assailed.
7. ' Mr. Shaikh Haider has referred to 1988 PTD 563 but in this case the question was framed as follows: ' Whether, on the facts and is the circumstances of the case the learned Tribunal was justified in holding that the remunerations recevied by the assessee as a director of three companies, are taxable under section 7 of the Income Tax Act.?
8. ' The tenor of this question clearly indicates that finding on the question of fact whether the assessee was a whole time or a part time employee was challenged and it was on this premises that the learned Bench proceeded to discuss the matter. As the petitioner has not challenged the finding of fact regarding nature of employment of the assessee the questions raised by the Department do not arise from the order of the Tribunal.
9. ' The appeal is dismissed.