applicant-revenue by their present reference applications under section 27(1) of Wealth-tax Act, 1957 ('the Act') all presented on 30-1-1984, required Tribunal to refer certain identical questions for valuable opinion of Hon'ble Orissa High Court, said to be referable questions of law and further said to be arising out of consolidated order dated 24-11-1983 of Tribunal, Delhi Bench 'A' in WT Appeal Nos. 80 to 94 (Cuttack) of 1980 for assessment years 1966-67 to 1974-75. 2. Following are identical questions during all years: "1. Whether, on facts and in circumstances of case, Tribunal was justified in coming to conclusion that land adjoining property under name Wilson House was agricultural in nature and, therefore, was not included in taxable wealth of assessee? 2. On facts and in circumstances of case, whether Tribunal was justified in stating that WTO did not carry any enquiry in treating property as one in which no agricultural operation was carried on?" 3. Following is common question during assessment years 1973-74 and 1974-75: "3. Whether Tribunal was legally justified in accepting contention that lease period expired on 1-4-1973 and directing deletion of property from taxable wealth although no such contention was at any time put forth for consideration by WTO?" 4. appeals were decided by consolidated order. facts, circumstances, parties and issues are common, and, therefore, for sake of convenience, we consolidate reference applications for consideration and disposal. 5. Inasmuch as, in our opinion, mixed questions of law and fact do, in fact, arise from said consolidated order of Tribunal, we proceed to draw up consolidated statement of case for making reference. 6. assessee is shown as HUF by status and valuation dates are 31-3-1976 and onwards. assessee was owner of land situated in Cantonment Road, Cuttack, Orissa. "The first item of property which is in dispute is land situated in Cantonment Road, Cuttack, Orissa. There is small dilapidated house, value of which is not in dispute in these appeals as value fixed by valuation cell is accepted. It is in respect of land that several objections have been raised by assessee. It is useful to give history of land in brief. land is Government land. land was given on lease to one P.S. Beument o f Calcutta, long prior to 1950. She bequeathed land in favour of her daughter Mrs. P.M. Macdonald, who became entitled by virtue of probate granted by Calcutta High Court on 9-2-1945. Just before grant of probate, assessee's father late S.M. Samal entered into agreement with executors of will of Mrs. Macdonald to purchase leasehold rights. That agreement somehow fell through and second agreement was executed on 10-4-1951. After mutation of land in favour of legatee, sale deed was executed by her and P.K. Samal became owner of leasehold rights and Khaitan (record of rights) was issued in favour of assessee on 5-6- 1953. total area of land is 3.508 acres. In year 1969, Government of Orissa started acquisition proceedings for portion of land measuring 2 acres. However, land actually acquired was 1.764 acres. This was meant for purpose of Government of India and compensation of Rs. 4,18,600 was paid for land. It further appears that remaining portion of 0.236 acres was not acquired although Government of India deposited compensation for same with Collector of Cuttack. Subsequently, Government thought of resuming land measuring 0.236 acre as also remaining land. One mere fact that is relevant to be mentioned is that lease in favour of assessee as per terms of lease deed expired on 1-4- 1973. In these appeals, we are concerned with assessment years 1966-67 to 1974-75. expiry of lease will have some bearing on question of determination of value of property. question of inclusion of this land came for consideration in wealth-tax assessments of assessee for all these years. Wealth-tax Officer rejected all objections raised by assessee and determined value taking compensation paid for 1.764 acres as basis. He has also kept in mind increase in value of land from year to year." Copies of assessment orders are marked as Annexures A1 to A9 and form part of statement of case. 7. matter was thereafter taken by assessee before learned AAC by way of first appeals. learned AAC confirmed findings of learned WTO during all years under consideration. copy of consolidated order dated 20-3-1980 of learned AAC is marked Annexure B and forms part of statement of case. 8. Finally, matters were taken by assessee before Tribunal by way of second appeals. "Mr. Pasayat for assessee raised number of contentions in regard to this particular land. He pointed out that land is essentially agricultural land which is recorded as such in record of rights issued by Government and that land revenue was being paid by assessee. Thus, it is submitted that land is not asset value of which can be included in wealth of assessee, Secondly, he submitted that lease is precarious one, which is terminable at option of Government by giving three months' notice in accordance with clause 12 of agreement dated 6-6-1952 and as such it cannot be treated as asset under definition of 'assets' in Wealth-tax Act. Thirdly, valuation made by authorities below is totally against principles of valuation and cannot be supported. It is submitted that leasehold right has to be valued keeping in mind unexpired period of lease. Lastly, it was submitted that after expiry of lease, there is no question of including value of land and this would be applicable for assessment years 1973-74 and 1974-75. learned departmental representative opposed each of these submissions vehemently. It was pointed out by him that land in question is in heart of city of Cuttack surrounded by residential and other buildings and, therefore, it cannot be treated as agricultural land by any stretch of imagination. Goela further argued that question whether particular land is agricultural land is to be judged from surrounding circumstances and not merely on fact that land is recorded as agricultural or that land revenue is being paid. He relied on decisions of Gujarat High Court which will have occasion to refer to." 9. Tribunal after considering ratios in following cases, namely, CIT v. Sarifabibi Mohammed Ibrahim [1982] 136 ITR 621 (Guj.), Arundhati Balkrishna v. CIT [1982] 138 ITR 245 (Guj.), Sercon (P.) Ltd. v. CIT [1982] 136 ITR 881 (Guj.), Gemini Pictures Circuit (P.) Ltd. v. CIT [1981] 130 ITR 686 (Mad.) and CWT v. Officer-in-Charge (Court of Wards) [1976] 105 ITR 133 (SC), vacated findings of lower authorities on point with following observations: "If above principles are kept in mind, we may straightaway observe that each of cases cited by both sides must be held to have decided matter on facts of that case. In fact, there is plethora of decisions on this point and it will be futile exercise to deal with all those decisions as ultimately we have to bear in mind basic principles and look to facts of case before us in order to decide whether land in question is agricultural land or not. On facts of case before us, we have no hesitation in holding that land is agricultural land. As already mentioned, land is registered in Jama Bandi register as cultivated land. statement of assessee that crops were grown remain uncontroverted. It must, therefore, be held that actual cultivation was taking place and crops were being raised for several years. There is no conversion of agricultural use to non-agricultural use at any stage. There was not even attempt by assessee to convert it into non-agricultural use by any mode. fact that land is in developed residential area is not decisive factor as held by Gujarat High Court in Sercon (P.) Ltd.'s case and that by Madras High Court in Gemini Pictures Circuit (P.) Ltd.'s case. We, accordingly, hold that land is agricultural in character and on this finding value of land cannot be included in wealth of assessee. We may also add here that so far as 0.846 acre of land is concerned, admittedly, there is orchard and land was shown as cultivated land. Apart from above aspect, argument that land has no value because of precarious nature of lease and various proceedings to have taken place as well as in regard to resumption proceedings started by Government to resume land may be considered. Mr. Pasayat having brought to our notice terms of lease argued that it is precarious lease terminable by giving three months' notice and that it cannot be treated as asset of value. He referred to these lines of cases where Courts have held that in such precarious nature, interest cannot be treated as asset. But Mr. Pasayat's submission cannot be accepted inasmuch as all those cases were decided prior to amendment of section 2(e) of Act, brought about by Wealth-tax (Amendment) Act, 1964. This aspect has come before Allahabad High Court recently in case of P.S. Gandhi v. CWT [1983] 141 ITR 105. Their Lordships referred to decision of Supreme Court in CWT v. Smt. R.A. Muthukrishna Ammal [1969] 72 ITR 801, which was decided prior to amendment and distinguished same. This is what their Lordships at page 119 have stated: '. . . amendment has now introduced significant alteration inasmuch s availability of interest for period not exceeding six years is to be seen from date interest vests in assessee. In present case, we have shown that interest available to assessee in disputed properties has been for period exceeding six years from date new contract of tenancy came into existence. In our opinion, therefore, this decision does not help assessee. . . .' In case before us also interest of assessee was for more than six years as lease commenced sometime in 1953. On relevant valuation dates which are involved in these appeals except for assessment years 1973-74 and 1974-75 about which we will deal with little later, obviously period was more than six years from date of vesting of leasehold right in assessee. It is, therefore, difficult to agree with contention of Mr. Pasayat that leasehold interest of assessee cannot be treated as asset. Such interest is being treated as asset is clear from decision of Allahabad High Court as also decision of Calcutta High Court in CWT v. Md. Ismail [1979] 117 ITR 273. Md. Ismail [1979] 117 ITR 273. Then question, however, arises about valuation of such leasehold interest keeping in mind right of Government to resume land by giving three months' notice and also fact that after expiry of lease period, land might be resumed. In valuing such right, one has to bear in mind, valuation made by authorities below by taking into account compensation fixed for land acquired is clearly unsupportable. Government thought that assessee had freehold interest and, therefore, fixed compensation, accordingly. compensation cannot be guide for fixing value of leasehold interest of assessee for assessment years under appeal (barring 1973-74 and 1974-75). What should be value of such interest for each of assessment years from 1966-67 to 1972-73 is matter which has to be decided on proper principles of valuation keeping in mind above features, but we do not want to do that exercise nor is it necessary to direct lower authorities to redetermine value in view of our basic finding that land is agricultural land." Copy of consolidated order of Tribunal dated 24-9-1983 is marked Annexure C and forms part of statement of case. 10. In light of aforementioned paragraphs, we refer questions hereinbefore mentioned, for esteemed opinion of Hon'ble Court at Cuttack. 11. On 21-9-1984, submissions were made on behalf of assessee by Mr. Pasayat, learned counsel, that draft statement of case prepared on 24-7-1984 and circulated to parties be not pursued any further and that, in fact, reference applications be dismissed. By learned counsel, reliance was placed on various case laws including: CWT v. Sayaji Mills Ltd. [1971] 82 ITR 662 (Guj.), CIT v. S. Devaraj [1969] 73 ITR 1 (Mad.), CIT v. L.G. Ramamurthi [1977] 110 ITR 453 (Mad.), CIT v. Land Corpn. of Bengal (P.) Ltd. [1982] 138 ITR 63 (Cal.), CIT v. Smt. Anusuya Devi [1968] 68 ITR 750 (SC), CWT v. Smt. Sheela Devi [1970] 77 ITR 693 (Punj. & Har.), CIT v. Anilbhai J. Chinai (HUF) [1984] 17 TAXMAN 354 (Bom.), CIT v. Burn & Co. Ltd. [1978] 114 ITR 565 (Cal.) and Raja Bahadur Vishweshwara Singh v. CIT [1954] 26 ITR 573 (Pat.). Submission and case laws have duly been considered. Per Shri B. Gupta, Accountant Member -- Insofar as it has not been possible to persuade myself to agree with views of learned Judicial Member that questions sought to be raised in these reference applications by revenue relating to wealth-tax assessments made on assessee for assessment years 1966-67 to 1974-75 are referable questions of law or mixed questions of fact and law, I would, with respect, dissent and hold as follows: 2. following two identical questions have been raised by department in assessment years 1966-67 to 1974-75: "1. Whether, on facts and in circumstances of case, Tribunal was justified in coming to conclusion that land adjoining property under name Wilson House was agricultural in nature and, therefore, was not included in taxable wealth of assessee? 2. On facts and in circumstances of case, whether Tribunal was justified in stating that Wealth-tax Officer did not carry any enquiry in treating property as one in which no agricultural operation was carried on?" For assessment years 1973-74 and 1974-75, following additional question is identically raised: "3. Whether Tribunal was legally justified in accepting contention that lease period expired on 1-4-1973 and directing deletion of property from taxable wealth although no such contention was at any time put forth for consideration by WTO?" 3. Before I take up task of deciding nature of above questions, I may briefly state facts indicating as to how these reference applications came up for repetitive hearing before Tribunal. departmental reference applications were initially heard on 29-6-1984 and common draft statement of case had been prepared. Thereafter, when consolidated draft statement was fixed for purpose of finalisation on 31-8-1984, learned counsel for assessee submitted that questions, raised in reference applications filed by revenue were merely questions of fact and that, therefore, draft statement of case already prepared by Tribunal deserves to be recalled. It was pointed out by learned counsel that proceedings up to stage of draft statement are merely tentative and that if Tribunal prepares draft statement under mistaken impression that questions sought to be raised therein are questions of law, it can redecide matter if in fact it finds that questions sought to be raised are only questions of fact. In support of this contention, learned counsel for assessee placed reliance on decision in Sayaji Mills Ltd.'s case. In order to hear learned representatives of assessee and department at some length, matter was adjourned to 21-9- 1984. On that date, once again learned counsel for assessee placed reliance on aforementioned decision and submitted that despite draft statement having been prepared earlier, Tribunal should redecide matter and hold that no questions of law arose out of order of Tribunal in WT Appeal Nos. 86 to 94 dated 24-11-1983. Being satisfied that matter could be reheard, representatives of rival parties were allowed to make their submissions once again. While it was contended by Shri J.R. Malhotra that questions raised in captioned reference applications were questions of law, learned counsel of assessee submitted after taking us through order of Tribunal dated 24-11-1983 that no questions of law arose out of that order. It was next submitted by learned counsel of assessee that whether particular land is agricultural or not is pure question of fact and for that he placed reliance on decision of Hon'ble Punjab and Haryana High Court in Smt. Sheela Devi's case. After so submitting with regard to identical questions sought to be raised in these reference applications, learned counsel submitted that reference applications filed by department should be rejected as order passed by Tribunal in WT Appeal Nos. 86 to 94 dated 24-11-1983 was based on facts and facts alone. 4. After considering rival submissions and after carefully perusing order of Tribunal dated 24-11-1983, it appears to me that indeed no questions of law arise out of order of Tribunal. question for consideration before Tribunal was as to what was nature of land belonging to assessee situated on Cantonment Road, Cuttack, in State of Orissa. Before deciding nature of land, Tribunal recorded historical background showing as to how land in question came to be acquired by assessee. Thereafter, Tribunal noticed objections raised by WTO to assessee's contention that land in question was agricultural in nature. In paragraph No. 3 of its order, Tribunal summed up contentions of learned counsel of assessee and departmental representative. In paragraph Nos. 4 and 5 of its order Tribunal gave following finding of fact: "At outset, we may mention that observations of Appellate Assistant Commissioner that in records of Tahsildar, land measuring 2.662 acres is recorded as homestead is not correct. From papers filed on record, it is clear that 0.846 acre has been recorded as cultivated and it has been admitted that it is orchard land. 2.662 acres also has been mentioned as cultivated land. As already mentioned, total land is 3.508 acres out of which 1.764 acres was already acquired and compensation was paid to assessee. We are, therefore, concerned with nature of remaining land. We will deal with right of assessee to receive compensation insofar as lands that were acquired. In other words, we have to consider nature of land that remained with assessee. 5. Apart from fact that record of rights shows that land is cultivated land and that assessee has been paying land revenue, assessee asserted right from beginning that actual cultivation was going on and that crops were raised. In this connection, we would like to point out what assessee stated before Wealth-tax Officer in his letter dated 24-2-1975. H e requested Wealth-tax Officer to inspect site and satisfy for himself that land has been under agricultural operation. In spite of this, Wealth- tax Officer did not cause any enquiries. There is, therefore, no doubt that land was being cultivated and crops were being raised by assessee. assessee also was very fair in stating that in view of his absence and in view of fact that portion of land was taken by All India Radio, there was difficulty in raising crops after 1975. We have, therefore, no hesitation on difficulty in raising crops after 1975. We have, therefore, no hesitation on basis of this material in holding that land is agricultural, in which case it cannot be included in wealth of assessee." Almost at end of paragraph No. 5, Tribunal took into account guidelines laid down by Hon'ble Supreme Court in matter of determining as to whether particular land is agricultural land or not. decision in case of Officer-in-Charge (Court of Wards) was noticed. observations and findings of their Lordships of Supreme Court were thereafter extracted. These were as follows: " . . . We agree that determination of character of land, according to purpose for which it is meant or set apart and can be used, is matter which ought to be determined on facts of each particular case. What is really required to be shown is connection with agricultural purpose and user and not mere possibility of user of land, by some possible future owner or possessor, for agricultural purpose. It is not mere potentiality, which will only affect its valuation as part of 'assets', but its actual condition and intended user which has to be seen for purposes of exemption from wealth-tax. One of objects of exemption seemed to be to encourage cultivation or actual utilisation of land for agricultural purposes. If there is neither anything in its condition, nor anything in evidence to indicate intention of its owners or possessors, so as to connect it with agricultural purpose, land could not be 'agricultural land' for purposes of earning exemption under Act. Entries in revenue records are, however, good prima facie evidence . . . . " 5. After taking into account guidelines laid as above, Tribunal held as follows: "If above principles are kept in mind, we may straightaway observe that each of cases cited by both sides must be held to have decided matter on facts of that case. In fact, there is plethora of decisions on this point and it will be futile exercise to deal with all those decisions as ultimately we have to bear in mind basic principles and look to facts of case before us in order to decide whether land in question is agricultural land or not. On facts of case before us, we have no hesitation in holding that land is agricultural land. As already mentioned land is registered in Jama Bandi register as cultivated land." According to me, above findings of Tribunal were merely findings of fact. It has been repeatedly mentioned by Tribunal as would be evident from above extracts of its order that it was deciding merely question of fact. It had found that land in question was agricultural land as per record of rights. It had been found that in 'Jama Bandi' land had been registered as cultivated land. Tribunal had further found that land revenue had been paid in respect of land. statement had been made by assessee that it was growing crops on land in question and this statement of assessee according to Tribunal remained uncontroverted. Tribunal also noticed fact that assessee had sent letter to WTO on 24-2-1975 requesting him to make on spot enquiries which would have shown that land was nothing but agricultural land. No spot enquiries were made by WTO and, therefore, Tribunal held that department had no evidence to show that land was not cultivated or crops were not raised on land on question. These findings of Tribunal are entirely within realm of facts. It may be that certain decisions of Hon'ble High Courts and Supreme Court which were cited on either side had been considered by Tribunal but that according to me, does not convert question of fact into question of law. As has been held by Hon'ble Punjab and Haryana High Court in Smt. Sheela Devi's case, question whether particular piece of land is or is not agricultural land is necessarily question of fact which has to be decided in circumstances of given case depending on nature and character of land, its environment, its being assessed to land revenue and various other relevant facts. I am further certified in my views after taking into account views of Hon'ble Supreme Court in case of Officer-in-Charge (Court of Wards). Their Lordships of Supreme Court have said as follows: " . . . We agree that determination of character of land, according to purpose for which it is meant or set apart and can be used, is matter which ought to be determined on facts of each particular case. . . ." [Emphasis supplied] Therefore, following direction of Hon'ble Supreme Court clearly indicates that question whether land is agricultural or not is question of fact. Their Lordships held as follows in last paragraph of their decision: "We think that this is fit case in which we should set aside judgment of Full Bench of High Court and hold that Tribunal should determine afresh, from correct angle, question of fact whether any of lands under consideration were 'agricultural' or not. . . ." [Emphasis supplied] 6. Having thus noticed findings of Tribunal, which have been extracted above and decision of Hon'ble Supreme Court and Punjab and Haryana High Court in aforementioned two cases, it appears to me that order of Tribunal dated 24-11-1983 did not give rise to any questions of law. question of referring question Nos. 1 and 2 identically raised in assessment years 1966-67 to 1974-75, therefore, does not arise. 7. Question No. 3 as it stands framed in departmental reference applications relating to assessment years 1973-74 and 1974-75 is also not question of law. revenue seems to have grievance that Tribunal was n o t justified in taking into account fact that lease in respect of agricultural land had expired on 1-4-1973. According to it, fact of cessation of lease on 1-4-1973 having not been put forth for consideration of WTO, that fact could not have been brought to notice of Tribunal by assessee and taken cognizance of by it. It was wholly within jurisdiction of Tribunal as per Income-tax Appellate Tribunal Rules, 1963 to have taken into account factum of cessation of lease on 1-4-1973. lease deed seems to have been produced before Tribunal and if on consideration thereof, it accepted uncontroverted fact that lease in respect of agricultural land in question had expired on 1-4-1973, no question of law can be said to arise therefrom. 8. In conclusion, all three questions raised in reference applications under consideration are held to be questions of fact and for that reason reference applications are rejected. REFERENCE ORDER UNDER SECTION 255(4) OF INCOME-TAX ACT, 1961 In these matters, consolidated draft statement of case was prepared o n 24-7-1984. At time of finalisation, learned Accountant Member, vide order dated 16-11-1984 became of view that no referable questions of law emanate from Tribunal's consolidated order dated 24-11-1984. 2. Consequently, matter is being placed before worthy senior Vice President for being placed before worthy President under section 24(11) of 1957 Act, read with section 255(4) of Income-tax Act, 1961, for further necessary action in matter. necessary facts in details have been incorporated in statement of case. 3. points for determination are as under: "1. Whether stage anterior to stage of finalisation of draft statement of case is tentative and whether it is open to parties to reagitate matter before draft is actually finalised? 2. Whether at stage of finalisation of consolidated statement of case, it was legally tenable to differ? 3. If answer to question Nos. 1 and 2 above is in affirmative, are questions raised . . . referable mixed questions of law and fact . . .?" THIRD MEMBER ORDER Per Shri Ch. G. Krishnamurthy, Senior Vice President -- point of difference of opinion in these reference applications is whether question of law arises out of order of Tribunal passed in WT Appeal Nos. 86 to 94 (Delhi) of 1980. Although Tribunal has developed healthy convention that in matters of reference applications, when one Member feels that question of law does arise out of order of Tribunal, other Member should not normally disagree, yet my learned brothers could not agree on this question. It is easier for me to propose to this convention to say that questions of law do arise out of order of Tribunal but I find that there are compelling reasons for honest difference of opinion to exist and, therefore, I appreciate difference of opinion and I would like to lean in favour of view that no question of law arises out of order of Tribunal or atleast referable question to High Court even if it is held eventually that question of law does arise out of order of Tribunal, because it has now been settled by cantena of decisions of High Courts and Supreme Court that even if order of Tribunal gives rise to question of law, that question need not be referred to High Court if it is of academic interest or question of law is decided by judgment of Supreme Court. It is latter part of well laid out dictum that applies to facts of this case. As in my opinion, matter that now debated between my learned brothers stands concluded by decision of Supreme Court, I felt that no question need to be referred to High Court for its opinion under section 27(1), even if in ultimate analysis it is said or can be said that question of law arises out of order of Tribunal. 2. Now adverting to facts, assessee is HUF and these reference applications arise out of wealth-tax assessments made on this HUF for assessment years 1966-67 to 1974-75, in respect of each of which valuation date is year ended 31st March. assessee owned certain lands in Cantonment Road, Cuttack, Orissa. On this land, there was small dilapidated house, value of which was not in dispute in these appeals. This land is Government land originally. It was given on lease to one P.S. Beumont of Calcutta long prior to 1950. This land was bequeathed by her in favour of her daughter Mrs. P.M. Macdonald, who become entitled by virtue of probate granted by Calcutta High Court on 9-2-1945. Just before grant of probate, assessee's father, late Shri. S.M. Samal, entered into agreement which executors of will of Mrs. Macdonald to purchase leasehold rights. That agreement somehow did not come through and second agreement w s executed on 10-4-1951. After mutation of land in favour of legatee, sale deed was executed by her and Shri P.K. Samal became owner of leasehold rights. Khaitan (record of rights) was issued in favour of assessee on 5-6-1953. total area of land was 3.508 acres. In year 1969, Government of Orissa started acquisition proceedings for portion of land measuring about 2 acres. However, actual land acquired was 1.764 acres. compensation of Rs. 4,18,600 was paid for land. remaining portion of land of 0.236 acre was not acquired although Government of India deposited compensation for same with Collector of Cuttack. Subsequently that land also was resumed. lease in favour of assessee in meantime expired on 1-4-1973. question that arose for wealth-tax purposes was whether value of this land was includible in net wealth of assessee. main contention was whether this land was put to agricultural use and, was therefore, agricultural land or not. It was pointed out that in Government records, this land was shown as agricultural land and that land revenue was being paid by assessee. It was also contended that lease that assessee was holding was precarious and, consequently, it has no value. It was shown that it was terminable at option of Government by giving three months' notice. It was also contended that value taken was very high even if it is ultimately held that it was taxable. Then when lease expired on 1-4-1973, there was no question of including value of land. Eventually, when matter come for decision before Tribunal, Tribunal agreed with assessee's contention and vacated findings of lower authorities. It held that keeping in view various principles of law decided by various High Courts and Supreme Court and applying those principles to facts on record, there would be no doubt that land in question was agricultural land. Tribunal held: "On facts of case before us, we have no hesitation in holding that land is agricultural land. As already mentioned land is registered in Jama Bandi register as cultivated land. statement of assessee that crops were grown remained uncontroverted. It must, therefore, be held that actual cultivation was taking place and crops were being raised for several years. There is no conversion of agricultural use to non-agricultural use at any stage. There was not even attempt by assessee to convert it into non- agriculture use by any mode. fact that land is in developed residential area is not decisive factor as held by Gujarat High Court in Sercon (P.) Ltd. v. CIT [1982] 136 ITR 881 and also by Madras High Court in Gemini Pictures Circuit (P.) Ltd. v. CIT [1981] 130 ITR 686. We, accordingly, hold that land is agricultural in character and on this finding value of land cannot be included in wealth of assessee. We may also add here that so far as 0.846 acre of land is concerned, admittedly there is orchard and land was shown as cultivated land." On question of assessee possessing only precarious lease and, therefore, this was not asset whose value could be included in net wealth, Tribunal disagreed with assessee. On question of valuation also, Tribunal did not express any opinion because of its finding that land was agricultural land, On these facts, Commissioner states that following questions arise out of Order of Tribunal as questions of law: "1. Whether, on facts and in circumstances of case, Tribunal was justified in coming to conclusion that land adjoining property under name Wilson House was agricultural in nature and, therefore, was not included in taxable wealth of assessee? 2. On facts and in circumstances of case, whether Tribunal was justified in stating that WTO did not carry any enquiry in treating property as one in which no agricultural operation was carried on? 1973-74 and 1974-75 3. Whether Tribunal was legally justified in accepting contention that lease period expired on 1-4-1973 and directing deletion of property from taxable wealth although no such contention was at any time put forth for consideration by WTO?" 3. learned Judicial Member was of opinion that these questions arise out of order of Tribunal as questions of law and proposed to refer them to High Court for its opinion under section 27(1). But learned Accountant Member was of view that decision given by Tribunal turned on pure questions of fact which do not give rise to any question of law. He relied very heavily upon decision of Supreme Court in case of Officer- in-Charge (Court of Wards), where Supreme Court laid down principle that determination of character of land according to purpose for which it was meant or set apart and can be used is matter which ought to be determined on facts of each particular case. This was view held by learned Accountant Member with regard to first two questions. With regard to third question relating to assessment years 1973-74 and 1974-75, he was of opinion that it was wholly within jurisdiction of Tribunal as per Income-tax (Appellate Tribunal) Rules, to take into account factum of cessation of lease and that lease deed seemed to have been produced before Tribunal and, therefore, that was not question of law but pure question of fact. Thus, difference of opinion that arose between my learned brothers has been referred to me by President as Third Member. 4. I have already indicated in beginning of this order about my inclination. Whatever may be position of our convention, fact remains now that difference of opinion arose whether question of law can be said to arise out of order of Tribunal it has to be resolved. From portion of order extracted above, it is abundantly clear that Tribunal gave categorical finding on consideration of relevant facts that land was agricultural in character. It found that land was under cultivation. It found that land revenue was being paid. It also found that on portion of land, orchards were standing. These are pure findings of fact which do not give rise to any question of law. conclusion to be drawn from these uncontroverted findings of fact is only one and that is that land is agricultural in character. This finding of Tribunal that land is agricultural land is pure finding of fact and does not give rise to any question of law. As rightly pointed out by learned Accountant Member that Supreme Court has rightly pointed out in case of Officer-in-Charge (Court of Wards) at p. 144 that determination of character of land is to be determined on facts of each particular case. Elsewhere in judgment, Supreme Court pointed out that "We think that this is fit case in which we should set aside judgment of Full Bench of High Court and hold that Tribunal should determine afresh, from correct angle, question of fact whether any of lands under consideration were 'agricultural' or not". Here again, Supreme Court advisedly used expression 'determine afresh question of fact whether any of lands under consideration were agricultural or not'. This shows that determination of character of land is always question of fact and this observation is only reiteration of principle laid down by Supreme Court that determination of character of land is always question of fact. In these circumstances, I find it difficult to say that from findings of fact recorded by Tribunal which are not controverted by department by raising separate questions by assailing those facts, that question of law arises out of order of Tribunal. Even otherwise if it is held that order of Tribunal does give rise to question of law, it is now laid down by Supreme Court that if answer to question is self-evident or where question is of academic interest, i.e., where it is concluded by judgment of Supreme Court Tribunal need not refer that question to High Court for its opinion--CIT v. Chander Bhan Harbhajan Lal [1966] 60 ITR 188 (SC), CIT v. Himangshu Sekhar Chakravarty [1974] 94 ITR 318 (SC) and Mathura Prasad v. CIT [1966] 60 ITR 428 (SC). In view of this settled position of law on this question, I am of opinion that no referable question of law arises from order of Tribunal. 5. Insofar as third question is concerned, it is again pure finding of fact and finding of Tribunal that lease expired on 1-4-1973 does not give rise to question of law. fact of matter is that order of AAC contains references to lease and its expiry on 1-4-1973 and it was not new fact that was discovered by Tribunal at appellate stage. It is already fact found by revenue which Tribunal adopted as correct. Therefore, question now raised suggesting as though Tribunal accepted contention on basis of fresh evidence produced for first time at appellate stage before, it does not seem factually correct. 6. It would now be useful to refer to points of difference as framed by my learned brothers: "1. Whether stage anterior to stage of finalisation of draft statement of case is tentative and whether it is open to parties to reagitate matter before draft is actually finalised? 2. Whether at stage of finalisation of consolidated statement of case, it was legally tenable to differ? 3. If answer to question Nos. 1 and 2 above is in affirmative, are questions raised . . . referable mixed questions of law and fact . . . .?" Insofar as first question is concerned, by answer to it, is clearly in affirmative as laid down by Gujarat High Court in case of Sayaji Mills Ltd. In this case, also, similar point arose for consideration. There also as in case before me after draft statement of case was placed before parties for finalisation, questions of law could be reagitated. If after draft is finalised different position might have emerged but before draft statement is finalised and it is placed before parties for their comments, question is what is nature of right of parties to reagitate matter of questions to be referred. Gujarat High Court held that till reference by Tribunal is actually filed in High Court, earlier stages which Tribunal goes through are tentative stages and not final and at no intermediate stage can it be said that final decision has been taken by Tribunal. Therefore, when Tribunal placed before parties draft statement o f case for reference for their suggestions, it would not amount to final decision of Tribunal not to refer certain suggested questions and it would be open to parties to reagitate matter. Gujarat High Court has followed decision of Bombay High Court in case of N.V. Khandvala v. CIT [ 1946] 14 ITR 635 and decision of Supreme Court in Lakshmiratan Cotton Mills Co. Ltd. v. CIT [1969] 73 ITR 634 in coming to above conclusions. In view of my answer to first question that it is open to parties to reagitate matter before draft is actually finalised and even to request Tribunal not to refer questions even though it was mentioned in draft statement, it is open to Members finalising draft statement to agree or not to agree with request put forward on behalf of assessee or department. In case they agree to drop question although included in said draft statement of case, there was nothing in law preventing Members from doing so. Similarly, it is also open to members finalising draft statement to include certain questions which were not originally included. All this is possible because stages anterior to finalisation of draft statement are tentative. When it is open to Members finalising draft statement to agree or not to agree with request put forward on behalf of parties before them, it follows that it is open for them also to disagree on their opinion. Whether it is stage of finalisation of draft statement or whether it is stage of preparation of draft statement, question that Members were considering is whether question of law arises out of order of Tribunal. When it is open to members to differ on this question at time of preparation of draft statement, there is nothing preventing them from differing at time of finalisation also, because finalisation is only continuation of preparation of draft statement. Members would become non est only after draft is finalised and reference application leaves office of Tribunal. But I, in interest of building up good and healthy convention and for ensuring proper judicial discipline and to increase faith of litigants before Tribunal in its capacity to administer justice without fear and favour, would say that it is always advisable to refrain from differing more particularly at stage of finalisation of draft statement of case. Members may agree to drop question or to include question but normally should refrain from differing at that stage much less at later stage on question whether question of law arises out of order of Tribunal or not although there was nothing against it in law. 7. In view of my conclusion recorded in earlier paragraph, I hold that order of Tribunal does not give rise even to mixed question of law and fact because in my opinion, findings recorded by Tribunal are pure findings of fact based upon ample material and those findings of fact could not be said to be mixed questions of law and fact. 8. Now matter will go before regular Bench for disposing of these reference applications in accordance with opinion of majority. *** COMMISSIONER OF WEALTH-TAX v. P.K. SAMAL