NASIM SIKANDAR, J.-- At the instance of the revenue the Lahore Bench of the Income Tax Appellate Tribunal has framed the following' questions for our consideration and reply:- " Quantum
(i) "Whether in the facts and circumstances of the case the learned Tribunal was justified in deleting the addition of Rs. 3,40,155/- by accepting the sale price of the house sold by the assessee at Rs. 10,50,000/- despite the fact that the registered sale-deed executed by assessee in respect of the said house recorded the sale price at Rs. 4,50,000/-.
(ii) Whether in the facts and the circumstances of the case, the learned ITAT was justified in taking judicial notice of a commercial practice of understanding the consideration recorded in registered deed which is patently violative of state laws insofar as it seeks to evade stamp duty fee, registration fee and Municipal Transfer Fee and allowing the assessee to take advantage of his own fraud?
PENALTY "Whether in the facts and circumstances of the case, the learned Tribunal was justified in cancelling the penalty imposed under section 111 of the Income Tax Ordinance, 1 979 for the assessm ent year 1 986-87?
2. According to the statement of the case, the respondent an individual returned "nil" income for the assessm ent year 1986- 87. From the accompanied wealth statement the assessing officer found that the assessee was owner of a house partly built covering the 'period under consideration. On usual proceedings he found that the investment made on the construction of the house remained unexplained to the extent of Rs. 3,40,155/-. The assessee attempted to explain that during this period he has sold his house No. 33 Ahmed Block the Gardon Town, Lahore for a consideration of Rs.
10,00,000/- though in the registered sale- deed sum of Rs. 4,50,000/- only was mentioned as price, It was also claimed that the aforesaid house had been assessed at Rs. 10,50,000/- by the Gain Tax Authority. The Assessing Officer however, refused to accept the explanation and accordingly whole of the aforesaid amount was added towards income by reference to the provisions of Section 13(1)
(b) of the . Income Tax Ordinance, 1979. Also a sum of Rs. 1,04,770/- was imposed as a penalty under section 111, Ordinance. The. Learned Tribunal on further appeal expressed by view that the assessee had succeeded in explaining the aforesaid investment. A learned single Bench of the Tribunal found that the house sold by the petitioner was estimated by the assessing officer at Rs.
7,20,000/- in the assessm ent year 1981-82. Therefore, in the view of the learned Member the disposal of the house in the year 1986-87 at Rs. 10.0. 000/- as claimed by the assessee was not farfetched and therefore need to be accepted.
Accordingly, the aforesaid addition as well was the penalty imposed was directed to be deleted.
3. After hearing the learned counsel for the revenue, we are of the view that the question if an investment is properly explain is predominantly a question of fact, It is not the case of the revenue that there was no material available before the learned Member to be considered while making the Direction for acceptance of the investment. Also the revenue has not disputed the reason earlier weighed with the learned Member that a house assessed by the revenue at Rs. 7,20,000/- in the assessm ent year 1981-82 could safely be touch to have been sold at Rs. 10.0. 000/- in the Assessm ent Year, 1984-8. The basis of the judgment of the learned Member also appeals to reason.
4. Question No. 2 as framed does not arise out of the order of the Tribunal inasmuch as the issue raised therein was neither (sic) nor ruled upon by the learned Tribunal. Question with regard to penalty is only consequential.
5. In view of what has been said above, we find that the issue of acceptance of explanation with regard to investment is a question of fact and therefore, does not raise any legal controversy.
Questions declined to be answered.