JUDGMENT P. Govindan Nair, J. 1. These references arise from assessments that have been made on a father and son for the assessment year 1968-69. At the instance of these assessees, the Income- tax Appellate Tribunal, Cochin Bench has referred the following question in the case of both assessees for our decision:" "Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was justified in law in treating the appellant share income from Messrs, Raja Litho Printers, Colombo and Raja Beedi Co., Colombo as unearned income?". 2. References 7 and 8 of 1971 relate to the father and 9 and 10 of 1971 relate, to that of the son. There are two references in relation to each of the assessee because there were two appeals before the Income-tax Appellate Tribunal, one by the assessee and the other by the department. The department appeal had been allowed and the assessee appeal, dismissed in both cases by the Tribunal by a common order. 3. The father and son were during the relative accounting period for the assessment year 1968-69 partners in two firms in Ceylon called Raja Beedi Co., Colombo and Raja Litho Printers, Colombo. In Raja Beedi Co., Colombo, the only partners were the father and son whereas in Raja Litho Printers, Colombo there were six other partners also. The father and son received substantial amounts by way of income as their share income from these two partnerships. The assessees were normally residents in India and the business activities of the two firms were in Ceylon. The question that arose before the Income-tax Officer was whether the assessees can be said to be actively engaged in the business of the two firms. He found that they were not. In appeal, the Appellate Assistant Commissioner came to the conclusion that the assessees were actively engaged in the business of the firm Raja Beedi Co., Colombo. But he also found that they were not actively engaged in the business of the other firm Raja Litho Printers, Colombo. There were appeals before the Tribunal by the department as well as the assessees in so far as the decision of the Appellate Assistant Commissioner went against them. The Tribunal disposed of the appeals by each of the assessees and the department by a common order. There were appeals before the Tribunal by the department as well as the assessees in so far as the decision of the Appellate Assistant Commissioner went against them. The Tribunal disposed of the appeals by each of the assessees and the department by a common order. The relevant part of this order Annexure C in the paper book relating to Income-tax Referred Cases 7 and 8 for the purpose of these references is in paragraph 5. The same paragraph is reproduced as paragraph 5 by the Income-tax Appellate Tribunal in the appeals relating to the assessment on the son for the year. This order also dated 9th January 1970 is Annexure C to the statement of the case in Income-tax Referred Case Nos. 9 and 10 of 1971. We shall extract paragraph 5 in the order of the Tribunal relating to the assessment on the father. "The learned authorised representatives appearing for the assessee has contended before us that the prosperity of the firm, M/s Raja Litho Printers, is only due to the concerted efforts of all the partners including the two partners from India. In the case of other firm, M/s Raja Beedi Co., since there are no other partners outside India, the two partners, father and son, have taken active part in the conduct of the business. Mr. C. P. Rao, appearing for the assessee, has produced copies of the correspondence written by his client and trunk call bills in support of the contention that his client was actively engaged in the conduct of the business of the firm. The learned representative has not been able to produce any more evidence than this bunch of correspondence. In this context, the learned departmental representative has drawn our attention to a decision of the Madras High Court reported in 41 I.T.R. 66 Ramdoss Purushothamdoss v. Commissioner of Income-tax. This is a case where the assessee, who was the financing partner of a firm, signed the cheques for the expenses of the firm, and kept in his custody outside usual working hours, the books, cash and key of the firm. Their Lordships held, on the facts of that case, that signing the cheques by itself might amount to engaging oneself in the conduct of the business, but signing cheques without anything more could not be proof of actively engaging oneself in the conduct of the business. Their Lordships held, on the facts of that case, that signing the cheques by itself might amount to engaging oneself in the conduct of the business, but signing cheques without anything more could not be proof of actively engaging oneself in the conduct of the business. It was further observed that keeping custody of the cash and the books of the firm, outside the office hours, when they were not needed for carrying on the business, would not be proof of actively engaging oneself in the conduct of the business. In our view, the facts in the present case are on a much weaker footing than the facts in the decision of the Madras High Court. We have, therefore, no hesitation in holding that the assessee was not actively engaged in the conduct of the business and therefore his share income was unearned."� 4. On behalf of the assessee counsel contended that the question framed and referred to us is wide enough to enable us to consider the correctness and or the legality of the finding entered by the Tribunal that the assessees were not actively engaged in the business of the two firms already referred to. It is equally vehemently contended by counsel on behalf of the Revenue that the question referred to us will not comprehend the correctness and or the legality of the above finding. He submitted that the finding is on a pure question of fact and that without a specific question being referred to us about the correctness of that finding we are not entitled to consider the correctness or the legality of that finding. He submitted that the finding is on a pure question of fact and that without a specific question being referred to us about the correctness of that finding we are not entitled to consider the correctness or the legality of that finding. Counsel on behalf of the assessee further submitted that the question whether the assessees were actively engaged in the business of the two firms is itself a mixed question of fact and law and that the finding has been arrived at by the Tribunal without even adverting to the materials that were available before the Tribunal, that there was a mis-direction in law by the Tribunal, that this order is perverse and arbitrary as it has failed to take into consideration or even to advert to the materials that were available before it and that in any view of the matter it was an unreasonable conclusion and that this court is entitled to say so, if it is so satisfied, even though the question referred to us only poses the query whether the finding that the share of the assessees is unearned income is right or not. 5. It is now very well settled by a long line of decisions of the Supreme Court that the expression facts and circumstances that normally precede or preface any question that is referred to this court must take in not facts and circumstances found by this Court but facts and circumstances found by the Tribunal in its order. It is equally well settled that if there is no specific challenge of any finding of fact by the Tribunal by an appropriate question being raised and referred to this court, this court is precluded from considering whether that, finding entered by the Tribunal should stand or not. We think the same principle must apply even in cases where the finding entered by the Tribunal is not merely a finding on a pure question of fact but is a finding on a mixed question of fact and law. We shall therefore assume in this case without deciding that whether a person is actively engaged in the business may in given circumstances involve not only pure questions of fact but also question of law. We shall therefore assume in this case without deciding that whether a person is actively engaged in the business may in given circumstances involve not only pure questions of fact but also question of law. Nevertheless the finding that a person is not engaged actively in a business is a separate and distinct finding of the Tribunal and when there is no challenge of that finding specifically by a specific question referred to us, we feel that the principle laid down by the decisions of the Supreme Court in India Cements Ltd. v. Commissioner of Income-tax, Madras 1966 (60) I.T.R. 52 , in Commissioner of Income-tax, Bombay City-I v. Greaves Cotton and Co., Ltd. 1968 (68) I.T.R. 200, in Hoogly Trust (Private) Ltd. v. Commissioner of Income-tax, West Bengal and Andaman and Nicobar Islands 1969 (73) I.T.R. 685 , in Commissioner of Income-tax, West Bengal-14 v. Kamal Singh Rampuria 1970 (75) I.T.R. 157 , in Karam Chand Thapar and Bros. (P.) Ltd. v. Commissioner of Income-tax (Central) Calcutta 1971 (80) I.T.R. 167 and in Karnani Properties Ltd. v. Commissioner of Income-tax, West Bengal 1971 (82) I.T.R. 547 preclude us from considering whether the Tribunal has erred in entering the finding that the assessees were not actively engaged in the business of the firm. And nothing that counsel for the assessee has been able to place before us enables us to distinguish these rulings or to escape the inescapable conclusion that we must answer the question referred to us on the basis of the finding entered by the Tribunal that the assessees were not actively engaged in the business of the firms from which firms they obtained share income. No doubt, the question referred to us becomes very easy of answering and almost becomes a meaningless issue before us because the definition of the term "earned income� in section 2 (7) (c) of the Finance (No. 2) Act, 1967 which is the provision applicable will take in income of a partner from the firm of which he is a partner only when he is actively engaged in the conduct of the business or profession of the firms. "Unearned" income"� has been defined in section 2 (7) (f) as income which is not "earned income"�. "Unearned" income"� has been defined in section 2 (7) (f) as income which is not "earned income"�. If an assessee who is a partner of a firm is therefore not actively engaged in the conduct of the business of the firm, the share income derived by that assessee from that firm is not earned income and it becomes unearned income as defined in the Act. If it is unearned income, the first schedule to the Finance Act, 1968, providing for surcharges on Income-tax will apply. 6. Counsel on behalf of the assessee relied on the decision of the Calcutta High Court in Commissioner of Income-tax, West Bengal-I v. East Coast Commercial Co. Ltd. and contended that the question whether an assessee transactions amount to dealings in shares and properties, or was mere investment is a mixed question of fact and law as has been held in the above decision and the question whether the assessee in this case had been actively engaged in the two firms is also a mixed question of fact and law and that what he is asking us to examine is not the correctness of a pure finding of fact by the Tribunal but only another aspect of the question that has been referred to us which we are entitled to examine as has been ruled by the Supreme Court in the decision in Commissioner of Income-tax, West Bengal-I v. East Coast Commercial Co. Ltd. 1970 (75) I.T.R. 8 and therefore we should examine the materials that were placed before the Income-tax Officer and either come to our own conclusion or ask the Tribunal for an additional statement of the case with a fresh finding on the issue after adverting to the materials that were placed before it. Counsel also relied on the decision in Oriental Investment Co. Ltd. v. Commissioner of Income-tax, Bombay 1957 (32) I.T.R. 664 and invited our attention to the question that has been held by the Supreme Court to arise out of the order of the Tribunal. We are not satisfied that either the decision in Commissioner of Income-tax, West Bengal-I v. East Coast Commercial Co. Ltd. 1970 (75) I.T.R. 8 , or the one in Oriental Investment Co. Ltd. v. Commissioner of Income-tax, Bombay can help the assessee. In the decision in Commissioner of Income-tax, West Bengal-I v. East Coast Commercial Co. We are not satisfied that either the decision in Commissioner of Income-tax, West Bengal-I v. East Coast Commercial Co. Ltd. 1970 (75) I.T.R. 8 , or the one in Oriental Investment Co. Ltd. v. Commissioner of Income-tax, Bombay can help the assessee. In the decision in Commissioner of Income-tax, West Bengal-I v. East Coast Commercial Co. Ltd. the question that had been referred was "whether, on the facts and in the circumstances of the case, the assessee had been rightly held to be a dealer in respect of the shares� When such a question had been referred, it was certainly open to the High Court to consider whether the conclusion reached on the materials before the Tribunal was perverse or was reached on no evidence. There is no such question before us. Nor is there a question as to whether the Tribunal has mis-directed itself in entering the finding without adverting to the materials placed before it. The decision in Oriental Investment Co. Ltd. v. Commissioner of Income-tax, Bombay reported in only pointed out the nature of the question that arose from the order of the Tribunal which the Supreme Court held was a question of law and which the Supreme Court found ought to have been directly referred. The proceedings which culminated in the appeal before the Supreme Court related to the dispute as to whether there was any question of law arising out of the Tribunal order and if so what the question was. We are not concerned with any such problem. We are not suggesting that no question of law could have arisen from the finding entered by the Tribunal nor are we suggesting that no referable question relating to this finding should have been framed and referred but only that we are precluded from considering the question because of a lack of a specific reference. In some cases, and we believe this is one such, the principle that has been laid down is likely to cause hardship to an assessee or to the Revenue. In some cases, and we believe this is one such, the principle that has been laid down is likely to cause hardship to an assessee or to the Revenue. But the jurisdiction exercised by the High Court in matters Of reference as has been clarified and defined by the Supreme Court in the decisions we have referred to is a very limited jurisdiction confined to the answering of the question in the exercise of a function which is advisory and such considerations can have no effect in transcending the limitations of this court. 7. We answer the question referred to us in the only way in which it could be answered on the basis of the findings entered by the Tribunal, that is, in the affirmative, against the assessee and in favour of the Department. We direct the parties to bear their respective costs. 8. A copy of this judgment under the seal of this court and the signature of the Registrar will be forwarded to the Income-tax Appellate Tribunal, Cochin Bench. have been attempted to be exported or brought within the limits of any customs area for the purpose of being exported, contrary to any prohibition imposed by or under the Customs Act or any other law for the time being force. Since under section 23-A of the Act, the prohibition imposed by section 12(1) has to be treated as one imposed by section 11 of the Customs Act an attempt to export the goods in contravention of the prohibition laid down in section 12 (1) of the Act will clearly attract the liability for confiscation provided under section 113 (d) of the Customs Act. It is indisputable on the facts of this case that there had been an attempt by the petitioner to export the goods in question in contravention of section 12(1) of the Act. That the attempt did not finally succeed is a matter of no moment at all so far as culpability under section 113 (d) is concerned. For the purposes of the said section it is not necessary that there should have been the commission of a completed offence of export of goods in violation of section 12 (1) of the Act; an attempt to effect such an export is punishable under the section. For the purposes of the said section it is not necessary that there should have been the commission of a completed offence of export of goods in violation of section 12 (1) of the Act; an attempt to effect such an export is punishable under the section. With respect, we are unable to agree with the conclusion reached by the learned Single Judge that the provisions of section 113 (d) of the Customs Act were not attracted in this case. We hold that the petitioner goods were liable for confiscation, under section 113 (d) and that the action taken in that regard by the Additional Collector of Customs was perfectly valid and legal. 10. When once the conclusion is reached that the goods were liable to confiscation under section 113 of the Customs Act the provisions of section 114 thereof are also automatically attracted because that section lays down that any person who has done any act in relation to any goods which has rendered such goods liable to confiscation under section 113 shall be liable to be inflicted a penalty in the manner and extent laid down in the said section. Accordingly we hold that the Additional Collector of Customs was right in holding that the petitioner had rendered himself liable for being proceeded under sections 113 and 114 of the Customs Act and that there is no ground for interference by this Court with the action taken against the petitioner as per the order Ext. P-6. 11. In the result, we allow the writ appeal, set aside the judgment of the learned Single Judge and dismiss the Original Petition with costs throughout. 12. These cases were heard along with Writ Appeal No. 142 of 1972 since they raised the same question as is involved in the writ appeal. The petitioner in these writ petitions is engaged in the business of export of sea-foods. 12. These cases were heard along with Writ Appeal No. 142 of 1972 since they raised the same question as is involved in the writ appeal. The petitioner in these writ petitions is engaged in the business of export of sea-foods. In respect of two consignments of canned shrimps which the petitioner attempted to export from India, the name of the consignee was shown in the shipping bills as a party in Bulgaria, though in truth, the contracts of sale were with a purchaser in Hamburg in West Germany resort having been taken to the said camouflage with a view to enable the payment to be made by the purchaser in rupee currency instead of in the manner laid down in rule 7 read with Schedule II in respect of goods exported to West Germany. In these cases also the declaration filed by the petitioner under section 12 of the Act did not contain a proper affirmation as is required by the last part of the section and the mode of payment of the purchase price was specified otherwise than in accordance with the manner prescribed by rule 7. Action was accordingly taken against the petitioner for the imposition of penalty under section 114 of the Customs Act on the ground that the goods had been attempted to be exported in violation of the prohibition contained in section 12 (1) of the Act. In the light of the views that we have expressed while dealing with Writ Appeal No. 142 of 1972 it must follow that the conclusion reached by the Collector of Customs that the petitioner was liable to be proceeded against under section 114 of the Customs Act is perfectly correct. The Original Petitions are therefore devoid of merits and will stand dismissed with costs.