JUDGMENT M.C. Agarwal, J.
1. In pursuance of an order dated September 13, 1976, made by this court under Section 256(2) of the Income-tax Act, 1961, in Income-tax Applications Nos. 2 and 3 of 1976, the Income-tax Appellate Tribunal, Allahabad, has referred the following question for the opinion of this court :
"Whether, on the facts and in the circumstances of the case, the profits of Rs. 17,228 and Rs. 39,249 realised by the assessee-Hindu undivided family on the sale of jewellery and ornaments were income, liable to income-tax in the assessment years 1968-69 and 1969-70, respectively ?"
2. We have heard Sri Rajesh Kumar Agarwal advocate, for the Revenue, and Sri V.B. Upadhya, advocate for the assessee.
3. The assessee-respondent is a Hindu undivided family carrying on the business, inter alia, of sale of gold ornaments and jewellery. During the previous years relevant to the assessment years 1968-69 and 1969-70, the assessee sold certain jewellery to foreigners and earned the aforesaid amounts of profit on the sale thereof. The question was whether the aforesaid amounts are taxable as the income of the assessee.
4. The assessee's contention was that the ornaments that were sold to the foreigners were not the stock-in-trade pertaining to the assessee's business as a jeweller, but the ornaments were the private assets of the family and, therefore, the profit arising from the same was not of the nature of income.
5. The Income-tax Appellate Tribunal, in a detailed judgment, came to the conclusion that the ornaments that were sold were not held by the assessee as its stock-in-trade and the sale thereof was not a part of its business transactions nor did the transactions amount to any adventure in the nature of trade and, therefore, the surplus arising from the sale of ornaments to the foreigners could not be brought to tax.
6. As regards the finding of the Tribunal that the ornaments in question did not form part of the stock-in-trade of the assessees and that the transactions of sale thereof were not in the course of business ; these are pure findings of fact, the correctness of which was not assailed before us. These are findings of fact arrived at by the Tribunal on an appraisal of the materials on the record and cannot be reviewed by this court in exercise of its advisory jurisdiction under Section 256(2) of the Act. On the aforesaid findings, the conclusion was inescapable that the profit arising from the sales in question was not of the nature of income, as defined in Section 2(24)(i) of the Income-tax Act, 1961. The question whether the profit arising from the sale amounted to a capital gain within the meaning of Section 45 of the Act and could be treated as income in terms of Section 2(24)(vi) of the Act was not agitated before the Tribunal, nor has that aspect been highlighted in the question that was directed to be referred to this court at the instance of the Revenue. We are, therefore, of the view that we need not express any opinion on that aspect.
7. In view of the above discussion, we answer the question in favour of the assessee and against the Revenue.