Jesraj Jiwanram vs Commissioner of Income Tax and another

Deka, J.—This is an application under S. 66(2), income tax Act, on which a rule was issued on the Commissioner of income tax Assam and the Appellate Tribunal, Calcutta Bench, to show cause why a case should not be stated and referred to the High Court, as contemplated under that provision of the law. The rule was argued before a Division Bench of this Court and due to the difference of views of the two presiding Judges the matter came up before me under el. 36 of the Letters Patent of the High Court of Judicature at Fort William in Bengal, which is operative with respect to this Court as well.

The matter has been argued before me by the learned Advocates appearing for the petitioners as well as for the opposite party--the Commissioner of income tax for Assam. I had further the advantage of reading the judgments of the two Hon''ble Judges of this Court who presided over the Division Bench.

Mr. S.K. Ghose the learned Advocate appearing for the petitioners confined himself to one of the points of law stated in his application under S. 66(2), Income tax Act, viz., the ground No. 2 on which a statement of the case and a reference is sought for. His main argument before me was that the assessment by the Income tax Commissioner for Rs. 1,30,000 that is, the money traced in the names of some of the individual members of the Hindu joint family, was most improper and illegal. He has conceded in a way that the 3rd ground on which a reference is Bought is concluded by the finding of fact and that the 1st ground is only prefatory to and interconnected with the 2nd ground which I have noticed above.

I have been referred to the judgments of the income tax Commissioner, the Appellate Assistant Commissioner and the income tax Tribunal and the order passed by the income tax Tribunal on the application by the assessee made under S. 66(1), income tax Act.

The Commissioner of income tax concedes in his cause shown that question No. 1 arises out of the order of the income tax Tribunal which he restates in the following words:

Whether on the facts and in the circumstances of the case the Tribunal was right in holding that while making the revised assessment, the procedure adopted by the Income tax Officer in taking the cash credits as a measure of his estimate was justified.

Though the Commissioner of Income tax denies that the 2nd ground arises out of the order of the income tax Tribunal, the question formulated by himself refers to that amount of Rs. 1,80,000 which was added as profit for the purpose of assessment of the Hindu joint family. He, therefore, indirectly admits the legality of raising this point.

It is a well established principle that a statement of a case can be asked for under S. 66(2) income tax Act, only on questions of law arising from the set of facts as found by the appellate authorities, -- here the income tax Tribunal, whose finding of fact is conclusive. There is a further requirement that the reference may be asked for by the High Court if it is not satisfied prima facie of the correctness of the decision of the Appellate Tribunal.

The Hon''ble Mr. Justice Ram Labhaya has observed in his judgment that the three points of law as formulated in the application under S. 66, income tax Act were not points of law and did not arise from the appellate order with which view I most respectfully disagree--except with respect to question No. 3,--as formulated in the Application for reference under S. 66(2), income tax Act. My Lord the Chief Justice has given much stress on the 1st ground as stated in the petition but other details of irregularities in the fresh assessment by the income tax Officer, apart from adding the personal deposits of individual members, were not pressed before me. I, however, differ, from His Lordship with respect to the 3rd ground which I consider to be concluded by findings of fact. I agree with the view expressed by His Lordship the Hon''ble the Chief Justice that for the present, all that we are asked to do is to call upon the Appellate Tribunal to state the case on the first two grounds:--that the assessment has not been made in accordance with law and particularly with regard to the credited amounts standing in the names of certain members of the joint Hindu family. I consider both these questions to be points of law.

I would accordingly direct that the Appellate Tribunal should state the case and refer it to this Court on the questions as stated below:

Whether on the facts and in the circumstances of the ease, the procedure followed by the learned income tax Officer in making a fresh assessment after the original assessment had been set aside by the learned Appellate Assistant Commissioner under S. 31(3)(b), income tax Act, was in accordance with law ?

Whether on the facts and in the circumstances of the case, the learned income tax Officer was justified in placing on the applicant Hindu undivided family the onus of explaining the amounts standing to the credit of Hanuman Prasad Agarwalla and certain other persons in the books of account of the local Banks and traders and in adding the said amounts to the total income of the said Hindu undivided family after treating them as omissions of sale and income from other sources not disclosed ?