Commissioner of Income Tax vs Sardarmal Shivdayal

D.N. Baruah, J.—In this reference u/s 256(2) of the Income Tax Act, 1961, the following two questions have been referred for opinion of this court :

"(1) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in cancelling the order u/s 271(1)(c) passed by the Inspecting Assistant Commissioner of Income Tax ?

(2) Whether, on the facts and in the circumstances of the case, the finding of the Tribunal that the assessee cannot be regarded as having concealed the particulars of income or furnished inaccurate particulars of such income is contrary to weight of the record and also to the finding given in quantum appeal in its order dated November 16, 1978, in I. T. A. No. 864/(Gau) of 1975-76 for this assessment year, and was arrived at without considering the entire evidence and materials on the records including those contained in the Tribunal''s order dated November 16, 1978, in I. T. A. No. 864(Gau) of 1975-76 ?"

The facts for the purpose of answering the questions may be narrated as follows :

The assessee is a registered firm dealing in grocery on wholesale basis. The assessee filed the return on June 19, 1972, with an income of Rs. 76,380. The assessee claimed deduction of Rs. 1,000 on account of composition fees paid to the Sales tax Department. The assessee in his letter dated September 13, 1972, brought to the notice of the Income Tax Officer that the sales tax authorities had searched the assessee''s premises and seized an exercise book, on the basis of which the turnover of the assessee was increased. The assessee claimed that composition fee paid should be allowed as deduction. The assessee claimed that the seized exercise book was kept with imaginary entries to hoodwink the customers. However, the Income Tax Officer rejected the contention and estimated the profit from the suppressed sales at Rs. 24,000. He also noted that the assessee must have ample unaccounted money for capital which he estimated at Rs. 60,000 and worked out at ten per cent. on the turnover of Rs. 6,00,000.

The assessee took up the matter before the Appellate Assistant Commissioner of Income Tax and the Appellate Assistant Commissioner of Income Tax allowed certain relief, which were restored by the Appellate Tribunal on appeal by the Revenue. Meanwhile, a penalty proceeding was initiated and the Inspecting Assistant Commissioner of Income Tax issued a show-cause notice to the assessee to show cause as to why penalty should not be imposed for concealment. The assessee submitted a reply stating that there was no concealment as the exercise book seized did not contain the real transactions. The explanation of the assessee was rejected and penalty was imposed u/s 271(1)(c) for Rs. 1,00,668, The assessee thereafter, took up the matter before the Income Tax Appellate Tribunal reiterating the same ground that there was no concealment and all the facts were before the Income Tax Officer and the assessed income was enhanced only because of rejection of the assessee''s submissions and not because of any finding that income was deliberately concealed by the assessee. The Appellate Tribunal considered various aspects and came to the conclusion that the exercise book must be regarded as a genuine record of the unaccounted transactions of the assessee and the assessee was indulging in unaccounted transactions. The Tribunal held that the assessee could not be regarded as having concealed the particulars of income or furnished inaccurate particulars thereof. The Revenue requested the Tribunal to refer the questions, which were, however, refused. Thereafter, the Revenue approached this court by filing Civil Rule No. 85(M) of 1979 and this court by judgment and order dated December 23, 1988, directed the Tribunal to refer the two questions mentioned above. Hence, the present reference.

We have heard Mr. G.K. Joshi, learned standing counsel appearing for the Revenue, and Dr. A.K. Saraf, learned counsel appearing for the assessee.

On a perusal of question No. 1, we find that it is entirely a question of fact and, therefore, this question cannot be answered.

Question No. 2, though at the first look appears to be a question of fact, however, on going through the order dated November 16, 1978 of the Tribunal, it appears that the Tribunal without considering the entire materials on record came to its finding. If that be so, it is a question of law. Dr. A.K. Saraf does not dispute this aspect of the matter and if the Tribunal arrived at its conclusion without considering the evidence and materials on record it will be a question of law. Now, it is to be seen which portion of the evidence has been left out by the Tribunal. Mr. Joshi has not been able to show which are the portions of evidence left out by the Tribunal at the time of making its decision. However, Mr. Joshi strenuously argues that the Tribunal came to the conclusion altogether contrary to the evidence on record, therefore, it is perverse and if it is perverse surely it is a question of Jaw and this court has jurisdiction to answer the question. Mr. Joshi further submits that this court directed the Tribunal by order dated December 23, 1988, in Civil Rule No. 85(M) of 1979 to refer the questions mentioned above for opinion of this court and this itself is sufficient to indicate that there are some questions of law to be answered.

Dr. Saraf vehemently opposes the submission of Mr. Joshi. According to Dr. Saraf, this court u/s 256(1) or u/s 256(2) of the Income Tax Act has jurisdiction to answer the question when the question is referred for opinion of this court. When the question is not referred by the Tribunal this court has no jurisdiction to answer it. Admittedly, the questions mentioned above are not the questions submitted by the Revenue. Therefore, the submission of learned counsel for the Revenue was that when this court directed the Tribunal to refer these questions for opinion of this court it is sufficient to indicate that these are questions of law to be answered has no basis at all. In this connection, Dr. Saraf has drawn our attention to a decision in Lakshmiratan Cotton Mills Co. Ltd. Vs. Commissioner of Income Tax, Uttar Pradesh, In the said decision, the apex court held thus (page 647) :

"Correctness of an order of the High Court calling for a statement of case may be challenged at the hearing of the reference and the court may decline to answer the question referred pursuant to the direction of the High Court, if it did not arise out of the order of the Tribunal, or is a question of fact or is academic or could not have been raised because it was not incorporated in the application u/s 66(1). . . ."

In view of the above decision of the apex court, this court while dealing with the reference can also see whether the questions can be answered. Merely because this court has directed the Tribunal to refer the questions, will not prevent this court in looking to that aspect of the matter while considering the questions referred to.

In Aluminium Corporation of India Ltd. Vs. Commissioner of Income Tax, West Bengal, the apex court held thus (page 13) :

"The question referred to the High Court for its opinion proceeds on the basis that the facts and circumstances of the case as found by the Tribunal are not in dispute but what is disputed is the legal effect of the facts and circumstances found by the Tribunal. As held by this court in the earlier decisions that when a question refers to the facts and circumstances in the case, it means the facts and circumstances as found by the Tribunal. If any party wants to challenge the correctness of the findings given by the Tribunal either on the ground that the same is not supported by any evidence on record or is based on irrelevant or inadmissible evidence or is unreasonable or perverse, a question raising any one of those grounds must be sought for and obtained. It is needless to say that the jurisdiction of the High Court in a reference u/s 66 is only an advisory jurisdiction. That being so it can only pronounce its opinion on the questions referred to it. It is trite to say that it cannot sit as an appellate court over the decision of the Tribunal. Bearing these facts in mind, let us now proceed to set out the facts as found by the Tribunal."

From the decisions referred to above, it is abundantly clear that this court has no jurisdiction to answer the question which is not referred for opinion of this court. Accordingly, we find that the submission of learned counsel for the Revenue is not a part of the question referred by the Tribunal for the opinion of this court. Regarding the question for non-consideration of the entire materials on record, we have gone through the judgment and find that the Tribunal has dealt with the entire matter in detail, Therefore, we hold that there is no material to show that the Tribunal arrived at a conclusion without considering the entire materials and evidence on record. Accordingly, we answer question No. 2 in the negative, i.e., in favour of the assessee and against the Revenue.

Copy of this judgment under the signature of the Registrar and the seal of this High Court shall be transmitted to the Income Tax Appellate Tribunal.

In the facts and circumstances of the case, there will be no direction as to costs.