Z. A. CHAHNA, J.-This application under section 66(2) of the Income-tax. Act has been made in consequence of an order passed by the Income-tax Appellate Tribunal rejecting the prayer of the assessee to refer to the High Court certain questions of law said to arise out of the order of the Tribunal passed on 9-6-1970, by which it allowed the departmental appeal and restored the order of the Income-tax Officer. The Tribunal rejected the prayer of the assessee on the ground that some of the questions desired by the assessee to be referred to the High Court were not questions of lacy but were decisions on facts and the remaining questions did not arise out of the order of the Tribunal.
2. The admitted facts of the case are that the assessee, Mst. Khatija bai, who bad migrated to Pakistan from Indore State in India, had 3/8th share in a partnership firm known by the name of Light Producers. For the assessm ent year 1958-59, she filed fact return of income on 30-12-1958, showing her income as RE. 9,578 from the said firm. No other source of income was declared. The assessm ent for the year 1959-60 of Messrs Light Producers was made by another 1. T O., who found that according to the books the assessee---s share of income from the firm was Rs. 9,701. The case of the assesses, however, was transferred to the Investigating Circle, the I. T. O. Of which, after detailed enquiries, by a lengthy order, came to the conclusion that the assesses hats assets outside the books on 31-3-1958, to the extent of Rs. 3,29,238, and after making deductions from this amount of the assessee's liabilities, amounts assessable for the years 1955-1956 and 1957-58, and her assets as on 11-3-1954, added back an amount of Re. 1,10,000 to her assets for the assessment year 1958-1959. Aggrieved by this order, the assesses went up in appeal before the Appellate Assistant Commissioner; who held that the assessee's case had wrongly been transferred to the Investigating Circle, as the law contemplated transfer of cases not personwise but case wise while the case of the assessee had been transferred personwise. He, accordingly, cancelled the assessment made by the 1. T. O. Of the Investigating Circle.
3. After the defect pointed out by the Appellate Assistant Commissioner was rectified, the case was again transferred to the Investigating Circle anti the concerned I. T. O. Again came to the same conclusion as his predecessor and added back an amount of Re. 1,0,000 to the income of tire assessee for the assessm ent year 1958-1959. Against this order, the assesses went up in appeal to the Appellate Assistant Commissioner, who set aside the order of the I. T. O. On the ground that the I. T. O. Had wrongly rejected the claim of the assessee that she had brought an amount of Re.
1,00,000 and jwellery worth Rs. 75,0'!0. At the time of her migration from Indore. In coming to this conclusion he relied upon Circular Letter No. 29(32) IT.R/49 dated 28-9-1949, directing the Income- tax authorities to accept the transfer of funds without insisting on any evidence. Against this order, the Depart--ment went up in appeal to the Tribunal, which restored the order of the I T. O , holding that there was riot an iota of evidence in support of the assessee's claim regarding transfer by her of money and jewellery from India and that the I. T. O. Had brought on record enough material to discard the different and contradictory pieces of circumstantial evidence through which the assesses sought to establish her claim. The assesses thereafter submitted an application under section 66(i) of the Income-tax Act to the Tribunal praying that the 8 questions detailed in the application be referred to the High Court for its determination. This application, however, was rejected by the Tribunal and hence the assessee bas made this application under section 67(2) to the High Court.
4. Mr. G. M. Dastagir, the learned counsel for the assesses, submitted before us at the outset and he was giving up six out of the 8 questions stated in the application under section 66(2) and was pressing only the following two questions "(1) Whether on the facts and circumstances of the case and in view of the documentary evidence produced by the applicant in support of the fact that the money and jewellery was brought from India at the time of migration from India Tribunal is right in holding that there was not an iota of evidence on record in support of that fact ?
(2) Whether re-assessm ent order is verbatim reproduction of the first assessment order and the Assessing Officer has failed to apply his own mind to the case. Is such an order valid?"
5. So far as question No. 2 is concerned, we do riot see how it arises from the order of the Tribunal as it has not been at all considered or referred to by the Tribunal and we are of the opinion that it was not raised before it. We asked Mr. G. M. Dastagir to satiety us that it was raised before the Tribunal but he was unable to refer us to any circumstance from which such inference could be drawn. It was not even raised before the Appellate Assistant Commissioner before whom the assessee was an appellant. The contention of Mr. Dastagir, however, was that since the Tribunal had restored the order of the I. T. O. This question does arise from the order of B the Tribunal. We are not impressed with the contention of the learned ,counsel. A point which was not raised before the Tribunal and has not been considered by it cannot be said to arise from its order. Wear fortified in our view by numerous decisions. In Mohammad Idrees Barry & Co. v. Commissioner of Income-tax (PLD 1959 SC (Pak.) 202) it was observed: "Further what is provided for in section 66(l) 33 not a reference of any question arising on the facts of the case but only a reference of the question or questions which arise out of the order of the Appellate Tribunal"
6. In Commissioner of Income-tax v. Manzoor Qadir (PLD 1966 Lah. 495), a Division -Bench of erstwhile High Court of West Pakistan, while holding that a letter, dated 31-12-1958, from the Prudential Assurance Company to Mr. Manzoor Qadir, which was not placed before the Tribunal, could not betaken into .Consideration by the High Court, observed: "That this Court cannot take into consideration facts which were not before the Tribunal when ft passed the appellate order."
7. A similar view was taken by a Division Bench of the Dacca High Court in Shamim and another v.
Commissioner of Income-tax, East Pakistan (PLD 1967 Dacca 488). In that cage, the point which was sought to be urged before the High Court was whether a notice calling for a return was short.
The Court refused to .Consider this point on the ground that the point does not appear to have been discussed in the order of the Appellate Tribunal.
8. Reference in regard to this question may also be invited to Odeon -Cinema v. Commissioner of Income-tax PLD 1971 Lah. 632. The question sought to be agitated before the Lahore High Court related to the exercise of the power by the Income-tsar Officer under section 23(4) to refuse registration. The High Court refused to consider this question on the ground that the point was not .Raised before the Tribunal.
9. We are in respectful agreement with the above decisions and hold that since the point regarding the invalidity of the I. T. O.'s. Assessme nt order, lo on the score that it was a verbatim reproduction of an earlier order, was not agitated before the Tribunal, it cannot be considered by us.
10. As to the question relating to the claim of the assessee that she bad brought cash and jewellery from India at the time of her migration .To Pakistan, we consider that this is a pure question of fact which has been decided by the I. T. O. And the Tribunal on the basis of evidence produced before the I. T. O. And which evidence has been carefully examined. The .Assessee produced no direct evidence to the effect that she had brought any money or jewellery froth India, but she relied upon the following 3 pieces of evidence in support of her claim regarding bringing money and jewellery from India:-
(a) That the assessee's husband had hired a locker on 1-1-1948, wherein the assessee claimed she had -kept the money and jewellery brought by her from India;
(b) that the assessee had sold jewellery worth Re. 50,000 in 1955 and in support of the sale, the assessee produced the purchase receipts issued by Sarraf Abdul Setter 1 and
(c) that the assessee had made a statement before the I. T. O., 'H' Division, on 12-7-1956, in which she had stated that she had brought a lac of rupees in cash and jewllery worth Re. 75,000.
11. The I. T. O., in his detailed order, has held that the mere renting .Of a locker by the assessee's husband does not show that the assessee had brought any money or jewellery from India and kept it there, specially in view of the contradictory statements made by her. Oat 20-8-1962, the aeseessee had made a statement on solemn affirmation that the money bad been kept in the Mercantile Cooperative Bank Ltd., after 6 months of her arrival. It was, however, established that the account in the Mercantile Cooperative Bank was opened in December, 1957, and hence the money said to have been brought from India could not have been deposited in 1948. Furthermore, this statement on Oath is at variance with tire letter, dated 22-9-1962, wherein the assessee stated that the case and the jewellery bad been deposited in the Safe Deposit Vault. An examination of the register relating to the Safe Deposit vault showed that it had not been operated union between 31- 1-1954 and 20-10-1955, while the sale of jewellery worth Rs 50.000 to Sarraf Abdul Sattar was said to have been made on 21-3-1955. There was no reason for the assessee assuming that the jewellery was kept in the locker, to tare it out some 4 months before it eves decided to sell the same.
12. The evidence as to the purchase receipts of Sarraf Abdul Sattar was disbelieved by the I. T. O. On the grounds, firstly, that Abdul Sattar was an unreliable witness, who had been arrested and convicted on criminal charges? Secondly, that in his evidence, the Sarraf did not even remember the name of the assessee or her husband or the years in which the sale of jewellery was made to him; that the Sarraf did not produce his account books showing the sale of such a large quantity of jewellery to him and finally the assessee could not produce the Dharam Ihhata receipt relating to the alleged sale of jewellery. The I. T. C. Also tools into consideration the circumstance that if the assessee had a lac of rupees in cash, where was the necessity for her to sell her ornaments, which a woman invariably is most reluctant to dispose of, or to take a 'can of Re. 36,412 from Messrs Sind Gas Light Company.
13. As regards the alleged statement made to I. T. O. 'H' Division, on 12-7-1957, it was found that the statement was not on record. The I. T.. O. Has further considered that there was no reason for the assessee to make such a statement as it had no relevance to the matter being considered by the I.
T. O., `H' Division.
14. In coming to the conclusion that the assessee had falsely claimed that she had brought cash and ornaments from India at the time of migration, the I. T. O. Not only considered the circumstance that the assessee had failed to produce any evidence before him in support of the purchase of jewellery in India or elsewhere or to prove that it had remained in he possession since 1948, but he also referred to the contradictory wealth statement filed by the assesses. It appears that she made 3 such statement. The first of those statements was filed on 31-3-1954, wherein she showed her total assets at Rs. 6,000, being Rs. 1,000 in cash and Rs. 5,000 in jewellery.
15. The question being purely of fact and the decision taken by the I. T. O. And the Tribunal being on the basis of tangible evidence produced before the Income-tax authorities, it cannot be determined by the High Court whose jurisdiction under section 66 is limited only to questions of law arising from the order of the Tribunal.
16. In Mohammad Anwar Mohammed Iqbal v. Income-tax Appellate Tribunal (PLD 1967 Kar. 351), it wax held that "the finding of the Tribunal regarding the reliability of accounts or otherwise is purely a question of fact and no question of law for opinion of this Court therefore arose out of the order of the Appellate Tribunal dismissing the assesses-applicant's appeal."
17. In Shahnawaz Khan & Company v. Commissioner of Income-tax (1969 SCMR 123), the claim of the petitioner firm was that it was a partnership firm, but the Income-tax Officer refused the firm's application for registration of the firm under the Income-tax Act, on the ground that the firm was not a genuine firm, that the deed of partnership produced was a made up document and that it exhibited no contractual transaction. It was held that "there were sufficient facts upon which the decision or the Income-tai authorities could be based, and therefore, their decision was clearly a decision on a question of fact and no question of law at all arose".
18. In Commissioner of Income-tax v. Zamindars Flour Mills (1970 SCMR 530), the question which was sought to be referred was whether the Appellate Tribunal was justified in allowing registration to the firm on the basis of a partnership deed. It was held by their Lordships of the supreme Court that "the slew of the Tribunal that partnership was created by the deed itself and the firm was, therefore, entitled to registration under section 26-A of tie Income-tax Act, for the charge year in question, there being no pre existing partnership as a matter of fact, did not present any legal question to be brought in the High Court for examination and decision under sub--section (2) of section 66 of the Income-tax Act".
19. Lastly, we may refer to the case of Lungia (Sylhet) Tea Company Ltd. v. Commissioner of Income-tax, Dacca Circle (1970 SCMR 872). The question which was sought to be referred by the assessee before the High Court was whether a particular amount constituted revenue receipt for the year 1954. On the basis of the evidence produced before him, the Income-tax Officer treated it as income. The contention before their Lordships of the Supreme Court was that the amount was received in 1947 and hence could not be taxed in 19,44. Repelling this contention, their Lordships observed:- "It may be pointed out that it is not every question of law that must bar referred to the High Court.
There must be some substance in it. We are satisfied that the High Court, in the circumstances of the present case, was perfectly justified in not calling upon the Income-tax Appellate Tribunal to refer the questions which were submitted before it.---
20. The first question sought to be raised by the assesses being a question of fact and having been decided by the I.T.O. And the Tribunals on consideration of all the relevant circumstances if favour of the assesses, cannot be agitated before us.
21 .Lastly Mr. G. m. Dastagir contended that the scope of subsection (2)of section 66 of the Income- tax act is wider than the scope for reference to the High court under subsection (1)of the said Act.
We find no force in this contention. Subsection (2)refers to the same questions which are covered by subsection (1) namely questions of law arising from the order of the Tribunal this was also the view taken by their Lordships of the Supreme Court in Zamindars Flour Mills--- case to which case we have already made reference.
22. Since question No. 1 is purely a question of fact while question No. 2 does not arise from the order of the Tribunal we would dismiss this application with costs