Mr. D. K. Jain, J. ( 1 ) BY this application under Section 256 (2) of the Income-taxact, 1961 (for short the Act) the revenue seeks a direction to the Income-taxappellate Tribunal to state a case and refer to this Court as many as 33 followingquestions, stated to be questions of law, arising out of a common order of thetribunal in ITA Nos. 1950-52 (DEL) of 1990, pertaining to assessment years 1985-86to 1987-88: "1. Whether, the IT AT was legally correct inentertaining and adjudicatingupon the assessee s plea that the consultancy fee accrued to it on11. 9. 1987 i. e. in the previous year relevant for assessment year 1988-89,whereas the Commissioner of Income Tax in the exercise of his jurisdiction u/sec. 263 hadexamined the assessment records of the assessee for assessment years1985-86, 1986-87 and 1987-88 and came to the conclusion that theassessment orders passed therein were erroneous and prejudicial tothe interest of revenue. ?2. Whether, the ITAT acted within its jurisdiction when it entertained theassessee s ground that consultancy fee had accrued to the assesseeonly in assessment year 1988-89 when the Commissioner of Income Tax in para 10. 1. of his orderhad held that the new stand taken by the assessee resiling from theearlierstand did not relate to the proceedings u/sec. 263 of the IT. Actand that the submission made in that behalf were extraneous to theproceedings u/sec. 263 which related to assessment years 1985-86,1986-87 and 1987-88?3. Whether, while deciding the appeals of the assessment year 1985-86,1986-87 and 1987-88 against the orders made u/sec. 263, setting asidethe assessment made in those years to be made afresh in accordancewith law, the ITAT had jurisdiction to hold that the assessee s incomefrom consultancy fee (which has been voluntarily offered by theassessee for assessment in those years and whose assessments werenot erroneous and prejudicial to the interest of revenue) was assessable in the assessment year 1988-89 which was not a subject matter ofappeal before the ITAT. 4. Whether, the ITAT was legally correct in holding that consultancy feeincome did not accrue to the assessee or did not constitute income ofconstructive receipt of income by the assessee in the said threeassessment years when those were remitted to Eljay s London Bankaccount as per terms of agreements which were the source of income?5. 4. Whether, the ITAT was legally correct in holding that consultancy feeincome did not accrue to the assessee or did not constitute income ofconstructive receipt of income by the assessee in the said threeassessment years when those were remitted to Eljay s London Bankaccount as per terms of agreements which were the source of income?5. Whether on the facts and in the circumstances of case, the ITAT wascorrect in law and on facts in observing that the accrual of consultancyincome did not take place in the assessment years 1985-86,1986-87 and1987-88. 6. Whether, the ITAT was legally correct in holding that the consultationfee accrued only on 11. 9. 1987 i. e. on the date of repatriation to Indiaand not on the dates of remittances of the fee by S. C. to Eljay s Londonbank A/c between 31. 7. 85 to 24. 10. 1986, when Japanese Yens wereremitted under agreement datd 30. 8. 84 and between 3. 12. 84 to 18. 6. 85when U. S. dollars were remitted under agreement dt. 5. 11. 84?7. Whether, on the facts and in the circumstances of the case, the ITATwas correct in holding that the letters dated 9. 2. 87, 15. 8. 87, 1. 9. 87,4. 8. 88 and 7. 10. 88 exchanged between the assessee company and itsassociates were notself serving and procured documents when it itselfadmitted the legal position in para 7. 2 of its order that the agreementdated 30. 8. 84 and 5. 11. 84 set forth the entire agreement of parties andwhich superceded any prior agreement and understanding to thecontrary as contained in letters dated 4. 6. 84 and 23. 7. 84?8. Whether the ITAT had any justification in law in giving the sanctitythat it gave to the aforementioned procured letters exchanged, afterthe end of the assessment years under reference between the assesseeand its associates under the two agreements dated 30. 8. 84 and 4. 11. 84set forth the entire terms and conditions and when each one of thoseclearly provided that " no amendment or addition to thin agreementshall be effective unless agreed upon the parties hereto in writing"?9. Whether the ITAT was justified in law in interpreting the two agreements dated 30. 8. 84 and 5. 11. 8. 84 and 4. 11. 84set forth the entire terms and conditions and when each one of thoseclearly provided that " no amendment or addition to thin agreementshall be effective unless agreed upon the parties hereto in writing"?9. Whether the ITAT was justified in law in interpreting the two agreements dated 30. 8. 84 and 5. 11. 84 in the manner it did by taking aid ofprocured and self serving evidence and by ignoring the abovemandatory terms of the two agreements which forbade any amendment or addition to the agreement unless agreed upon by the partiesin writing (as was done by them when they, just for making a minorchange in the agreement, executed an addendum to the agreements on24. 6. 1985)?10. Whether, when the ITAT had itself held that the matter contained inletters dated 4. 6. 84 and 23. 7. 84 stood superceded, was it justified in lawin saying that letters subsequent to the dates of agreements could beconsidered even though those went against the tenor of the agreements dated 30. 8. 84 and 5. 11. 84 which were self contained codesincorporating all the terms of the agreement between the assessee andsumitomo Corporation?11. Whetherwhentheagreementdt. 30. 8. 84and5. 11. 84werebetween theassessee and S. C. only and when Eljay was not a party to the agreements, was the ITAT justified in law in saying that the correspondencewhich passed between the assessee on one hand and Eljay on the otherhand were relevant for interpreting the agreements dt. 30. 8. 84 and5. 11. 84?12. Whether the ITAT was legally correct in holding that the consultationfee accrued as income as on the date of repatriation i. e. on 11. 9. 87 asagainst the dates of accrual mentioned in the aforesaid agreements?13. Whether when the assessee had in its returns of income filed on solemnaffirmation, shown the commission income in the Assistant year 1985-86,1986-87 and 1987-88 and when on the basis of those returns the assesseehad obtained benefit of remission of interest and penalty etc. bymoving petitions u/sec. 273 A before the Commissioner of Income Tax (which petitions hadbeen accepted by the CIT) the ITAT was justified in law in holding thatthose incomes did not accrue in those assessment years but accrued ina. Y. 1988-89 which was not a subject matter of appeal filed by theassessee relating to A. Y. 1985-86, 1986-87 and 1987-88?14. bymoving petitions u/sec. 273 A before the Commissioner of Income Tax (which petitions hadbeen accepted by the CIT) the ITAT was justified in law in holding thatthose incomes did not accrue in those assessment years but accrued ina. Y. 1988-89 which was not a subject matter of appeal filed by theassessee relating to A. Y. 1985-86, 1986-87 and 1987-88?14. Whether the ITAT was legally correct in supeimposing its observations over the observations of the Commissioner of Income Tax which were strictly in keepingwith the law laid down by the Delhi High Court in Gee Vee Enterprises, 99-375 ITR?15. Whether on the facts and in the circumstances of the case, the ITATwas correct in law in observing that the accrual of consultancy incometook place in the assessment year 1988-89, therebyreducing the totalincome for the assessment years 1985-86, 1986-87 and 1987-88 to afigure lower than the returned income, which could not have beendone in an order under Section 263 which was the subject of appeal?16. Whether when the Commissioner of Income Tax had not given any positive findings that anyparticular amounts were to be added by the Assessing Officer in there-assessments and when the Commissioner of Income Tax had merely set aside the assessments with the direction that those be reframed de novo in accordancewith law after making proper enquiries in the light of facts andcircumstances of the case, the ITAT was justified in law in prejudgingthe issues which had to be decided only by the Assessing Officer at thetime of making fresh assessments and which had not in fact beendecided by the Commissioner of Income Tax in his order u/sec. 263?17. Whether on the facts and in the circumstances of the case, the ITATwas correct in law in modifying the observations of Commissioner of Income Tax and foreclosing the enquiry by the assessing officer even in respect of issues wherelack of enquiries on the part of the assessing officer had rendered theorder erroneous and prejudicial to the interests of revenue?18. Whether the order of the ITAT was not perverse in law and contraryto law laid down by jurisdictional High Court in the case of Gee Veeenterprises (99 ITR 375)?19. Whether the order of the ITAT was not perverse in law and contraryto law laid down by jurisdictional High Court in the case of Gee Veeenterprises (99 ITR 375)?19. Whether the ITAT was justified in law in ignoring or not consideringin proper perspective the submission of revenue at the time of hearingof appeals that the assessee had resiled from its stand that commissionincome was assessable in the assessment years 1985-86, 1986-87 and1987-88 on realizing that while the provisions of Section 104 of thei. Tax Act, 1961 and the provisions of Company Profits Sur-tax Act,were applicable in those assessment year, those will not be applicablein the assessment year 1988-89, having been deleted w. e. f. 1. 4. 1988?20. Whether the ITAT was justified in law in ignoring the apparent motiveof the assessee of resiling from its mercantile system of accounting onlyon receiving notices under Section 104 of the Income-tax Act andunder Companies (Profits) Surtax Act?21. Was the Tribunal justified in law in ignoring the submissions made onbehalf of the Department that income accrues when it becomes dueand postponement of payment does not suspend accrual and therebyignoring the decision of Hon ble Supreme Court in the case of Morviindustries reported in 82/835 ITR?22. Whether the ITAT was correct both in fact and law in holding that Rule115 of the Income Tax Rules was not applicable when the remittanceswere made by Sumitomo Corporation to Eljay in the London Bankaccount designated by the assessee?23. Whetheron the facts and in the circumstances of the case, the ITAT wascorrect in law and on facts in holding that Rule 115 does not apply forthe assessment years 1986-87 and 1987-88 for the conversion of foreigncurrency consultancy income into Indian rupees?24. Whether the interpretation of the provisions of Rule 115 made by theitat was justified in law?25. Whether when in almost similar circumstances another concern of thesuri Group had earned interest income on remittances which remained deposited in London Bank and when no such interest incomehad been shown by the assessee in respect of deposits in London Bankand when the Assessing Officer had not made any enquiry in thatregard, was the ITAT justified in law in holding that Commissioner of Income Tax was not rightin acting u/sec. 263 and in directing that aspect of the matter shouldbe looked into when the fresh assessments were made?26. 263 and in directing that aspect of the matter shouldbe looked into when the fresh assessments were made?26. Whether the ITAT was legally correct in holding that the Commissioner of Income Tax was notright in coming to the conclusion that the facts of the case ought to haveprovoked enquiry on the point of accrual of interest on amounts whichduring the concerned period, remained deposited in the specifiedaccount of London Bank?27. Whether the ITAT was correct both in facts and in law in holding thatthe Commissioner of Income Tax was not right in holding that due enquiry was not made on theshare application money of Rs. 1,98,68,081. 75 as stated to have beenreceived from Eljay Consultants Inc. ?28. Whether the ITAT was correct in law in holding that the Commissioner of Income Tax was notright in his observations that the receipt of assessee company on31. 1. 85 from Eljay Consultants Inc. which had a very paltry capital ofits own, had not been enquired or looked into by the Assessing Officerand that for that reason the order of that assessment year was erroneous and prejudicial to revenue?29. Whether on the facts and in the circumstances of the case, the ITATwas correct in law and on fact in observing that the source of sourcecannot be expected to be enquired into from the assessee by ignoringthe fact that even the factual position as to whether the amount ofrs. 1,98,68,081. 75 was share application money or loan is not clear. 30. Whether on the facts and in the circumstances of the case, the ITATwas correct in law and on facts in observing that the source of sourcecannot be expected to be enquired into by ignoring the decision of thebombay High Court in the case of Orient Trading Co. Ltd v. CIT, 49 ITR723 and the facts that the veracity and genuineness of the transactionilself is doubtful and that Eljay is a front company of the assessee?31. Whether the ITAT was legally correct in giving contradictory findingswhen on the one hand it held that the jurisdiction u/s 263 could bevalidly assumed by the Commissioner of Income Tax and the assessments set aside to be madeafresh on the other hand held that the prina facie view expressed bythe Commissioner of Income Tax has to be taken by the Assessing Officer as modified by itsobservations regarding accrual of income, interest, share applicationmoney and Income tax Rule 115?32. Whether the findings of the ITAT as contained in para 7. 8 of its orderwere in consonance with provisions of Section 263 (1) read withexplanation (b) of that section?33. Whether and when the ITAT had agreed that the Commissioner of Income Tax was justified inlaw in assuming jurisdiction u/sec. 263 it was legally correct in eliminating the various observations of the Commissioner of Income Tax which were the basis of hiscoming to the conclusion that orders framed by the Assessing Officerin three assessment years had not been properly framed and wereerroneous and prejudicial to interest of revenue and which observations were in keeping with the law laid down by the Delhi High Courtin the case of Gee Vee Enterprises (99 ITR 375)?" ( 2 ) THE respondent assessee, a Private Limited Company, derived incomefrom business of aviation by acquiring aircraft and by leasing the same to Delhiflying Club. Besides, it also derived income from consultancy from a concerncalled M/s. Sumitomo Corportion, Tokyo. It entered into two agreements dated30. 8. 84 and 5. 11. 84 with the said Corporation agreeing to act as its consultants inrespect of the tenders floated by Oil and Natural Gas Commission (for short theongc) for the supply of Saw Line Pipe and Seemless Casing Pipe to the Gasauthority of India and the ONGC respectively. The mode and time of payment ofconsultancy fee was prescribed in the said agreements. Originally the entireconsultancy fee under the said agreements was included by the assessee in itsreturn for the assessment year 1987-88 for which the previous year ended on31. 1. 1987. Subsequently the assessee wrote to the Commissioner of Income-taxrequesting that the entire consultancy income be spread over in three years,namely, assessment years 1985-86 to 1987-88 and appropriate immunity from thelevies of penal interest and penalty be granted. For the purpose it filed petitionsunder Section 273a of the Act. The Commissioner, it appears, agreed for waiverof interest chargeable under Sections 139 (8) and 217 of the Act and for droppingthe penalty proceedings. Before the said order was passed by the Commissioner,the assessee filed revised returns for all the said three years, for which the relevantprevious years ended on 31. 1. 1985,31. 1. 1986 and 31. 1. 1987 respectively, spreading the income received from M/s. Sumitomo Corporation by taking into accountthe dates of payment by the said Corporation to one M/s Eljay Consultants,london. Before the said order was passed by the Commissioner,the assessee filed revised returns for all the said three years, for which the relevantprevious years ended on 31. 1. 1985,31. 1. 1986 and 31. 1. 1987 respectively, spreading the income received from M/s. Sumitomo Corporation by taking into accountthe dates of payment by the said Corporation to one M/s Eljay Consultants,london. Assessments were completed on the basis of the said three returns, as aresult whereof certain demands were created. ( 3 ) THE assessee filed appeals against these assessments and subsequently alsomoved anapplication before theCommissioner of Income-tax (Appeals) for raisingan additional ground of appeal to the effect that the entire consultancy income wasnot assessable in the said three years as spread over but only in the assessment year1988-89, on the plea that the consultancy fee became the income of the assessee onlywhen it was received in India on 11. 9. 1987 and that the earlier returns based onvoluntary agreement with the department were bad in law. The entire consultancyfee was accordingly offered for assessment in the assessment year 1988-89 forwhich return was filed. Meanwhile the Commissioner of Income-tax felt that theaforesaid assessment orders for the said three assessment years were erroneous inso far as they were prejudicial to the interest of the revenue because: (i) the assesseehad claimed depreciation on the aircraft at a higher rate; (ii) no enquiry had beenmade to determine the amount of interest that had accrued to the assessee on theamounts deposited in a specified account in a London Bank; (iii) no enquiry hadbeen made regarding the real identity, credit worthiness and the source ofinvestment of Rs. 1,98,68,081. 75? allegedly received from Eljay Consultants Inc. ,initially as advance/deposit and later shown as share application money and (iv)Rule 115 of the Income-tax Rules had not been applied. Accordingly the Commissioner issued a show cause notice to the assessee under Section 263 of the Act, towhich the assessee filed its reply. Not being satisfied with the assessee sexplanation, the Commissioner set aside the three assessments with a direction tothe Income-tax Officer to frame assessments de novo in accordance with law aftermaking proper and appropriate enquiries. ( 4 ) AGAINST the said order of the Commissioner, the assessee preferred TO anappeal to the Income-tax Appellate Tribunal, where it reiterated its stand thatincome from M/s Sumitomo Corporation accrued to it only on receipt of moneyin India on 11. 9. ( 4 ) AGAINST the said order of the Commissioner, the assessee preferred TO anappeal to the Income-tax Appellate Tribunal, where it reiterated its stand thatincome from M/s Sumitomo Corporation accrued to it only on receipt of moneyin India on 11. 9. 1987 and, therefore, the whole of it was taxable in India only in theprevious year to which the date of receipt related to viz. . , assessment year 1988-89and not in the earlier assessment years. It was contended that no prejudice wouldbe caused to the revenue if the assessment is made in the manner now suggestedeven though earlier assessments were made on the basis of the returns filed by theassessee in terms of the agreement arrived at with the Commissioner. The Tribunalvide its common order for the said three assessment years came to the conclusionthat: (i) the grant of depreciation on aircraft at 40% was erroneous and to that extentthe jurisdiction of the Commissioner of Income Tax under Section 263 was properly exercised; (ii) theaforesaid agreements clearly provided that consultancy fee was to be remitted bysumitomo Corporation to a designated account of Eljay Consultants in the Bankof Credit and Commerce in London and the position of M/s. Eljay Consultants wasthat of a confidant of both Sumitomo Corporation and the assessee and that theright of the assessee to the amount from the Sumitomo Corporation was incohateand imperfect till 11. 9. 1987; various letters exchanged between the assessee andeljay Consultants, operated as supplements to the contracts and showed that itwas only after 11. 9. 1987 that the assessee s right in respect of the consultancy feegot perfected and the Commissioner of Income Tax was, therefore, not right in taking the remittances of theconsultancy fee by Sumitomo Corporation to the designated account of Eljayconsultants at London as the dates of accrual of the said income; (3) the questionof there being any constructive receipt earlier to the receipt of the money in Indiadid not arise; (4) the share application money of Rs. 1,98,68,081. 75, shown by theassessee in its balance sheet as on 31. 1. 85 as having been received from Eljayconsultants had been received after necessary approval from the Reserve Bank ofindia, which information having been furnished to the Income-tax Officer, the CITwas not right in holding that due enquiry had not been made on this point by theassessing officer; and (5) since the consultancy fee accrued in India on 11. 1. 85 as having been received from Eljayconsultants had been received after necessary approval from the Reserve Bank ofindia, which information having been furnished to the Income-tax Officer, the CITwas not right in holding that due enquiry had not been made on this point by theassessing officer; and (5) since the consultancy fee accrued in India on 11. 9. 87 therewas no question of under-assessment on account of applicability of Rule 115 of thesaid Rules as there was no provision for artificial conversion. ( 5 ) BEING aggrieved, the revenue filed application under Section 256 (1) of theact seeking reference on the aforesaid questions. While dismissing revenue sapplication, the Tribunal held that the aforesaid conclusions reached by it were allfindings of fact, based on proper appraisal of evidence and, therefore, no questionof law arose. Hence the present application. ( 6 ) THE application is vehemently resisted by Mr. P. V. Kapur, Senior Counselfor the assessee who submitted that answers to the proposed questions are eitherself evident or stood concluded by two decisions of this Court in C. I. T. , Madrasv. A. Gajapathy Naidu, (1964) 53 ITR 114 and Dalmia Dairy industries Ltd. v. Union of India and Others. , ILR (1980)111286. We are unable to agree. Apart fromthe fact that the ratios of the decisions relied upon on behalf of the assessee do not,prima facie, apply to the facts in hand, it also seems difficult for us to say thatissues raised in this application stand answered conclusively either by the Supremecourt or this Court. Even otherwise, at this stage we are not called upon topronounce upon the correctness or otherwise of the view taken by the Tribunal. What we have to consider is whether a question of law, fit for consideration by thiscourt arises from the order of the Tribunal or not. We are constrained to observethat while arriving at the conclusion that the main question whether consultancyfee from M/s. Sumitomo Corporation accrued in the previous years relevant to theassessment years 1985-86 to 1987-88 or assessment year 1988-89, was a finding offact, the Tribunal perhaps lost sight of the fact that this finding was arrived at byit on an interpretation of various clauses of the aforesaid two agreements dated30. 8. 84 and 5. 11. 84 and various other letters REFERRED TO to in its order. Infact, in para7. 8. 84 and 5. 11. 84 and various other letters REFERRED TO to in its order. Infact, in para7. 4 of its order, the Tribunal has itself observed that "the accrual of incomedepended upon the interpretation of the contracts". Where the determination ofa question involves interpretation of documents, a question of law does arise. ( 7 ) WE are of the view that the following questions of law, which we havereframed, do arise from the order of the Tribunal: I. "whether on the facts and in the circumstances of the case the Tribunalwas right in law in holding that the consultancy fee income fromsumitomo Corporation accrued/arose to the assessee in the previousyear ended on 31. 3. 88 (relevant to the assessment year 1988-89) and notin the prior previous years ended 31. 1. 85; 31. 1. 86 and 31. 1. 87 (relevant tothe assessment years 1985-86 to 1987-88 respectively)?" 2. "whether while dealing, with. the appeals for the assessment years1985-86 to 1987-88 against the orders made by the Commissioner ofincome-tax under Section 263 of the Income-tax Act, the Tribunal wasjustified in recording a conclusive finding that the assessee s incomefrom consultancy fee was assessable for the assessment year 1988-89?" 3. "whether on the facts and circumstances of the case and on a correctinterpretation of Rule 115 of the Income-tax Rules theTribunal wasright in holding that the said Rule was not applicable when theremittances were made by M/s Sumitomo Corporation to M/s Eljayconsultants Inc in the London Bank?" 4. "whether the Tribunal was justified in holding that while acting undersection 263 of the Income-tax Act the Commissioner of Income-tax wasnot right in holding that due enquiry had not been made by theassessing officer in the share application money/ deposit allegedlyreceived from M/s Eljay Consultants Inc. ?" 5. "whether the Tribunal was legally correct in holding that thecontracts dated 30. 8. 84 and 5. 11. 84 read with various letters were clearand, therefore, the Commissioner of Income-tax was not justified inholding that enquiry on the point of accrual of interest on the amountsdeposited in the specified account of London Bank should have beenmade by the assessing officer?"we would accordingly direct the Tribunal to draw up a statement of the caseand refer the aforesaid questions for the opinion of this Court. Revenue will beentitled to costs which we quantify at RS. 1,000. 00.