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TMI Blog1962 (6) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... med him that the shares were purchased about the month of April or May, 1944. It appears that the Income-tax Officer made further enquiries as to the source of the funds with which these shares had been purchased. Certain explanations were given by the assessee but not to the satisfaction of the Income-tax Officer. The Income-tax Officer, therefore, after obtaining the approval of the Commissioner of Income-tax, issued notice under section 34 of the Act for reopening the assessment of the assessment year 1945-46. During the assessment proceedings it was disclosed that the assessee had made four deposits, three in the month of March, 1944, and the fourth in the month of August, 1944, in his account in the books of Messrs. Suren Co., totalling to ₹ 42,500. An account also was opened in the name of the assessee's wife and in that account an amount of ₹ 42,500 was deposited on 17th March, 1944. Almost all the shares of Messrs. Suren Co. Ltd. were held either in the name of the assessee or his wife. As regards the source of ₹ 42,500 standing in the name of the assessee's wife, the explanation of the assessee was that it partly came from the sale proceeds of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... require any specific explanation from the assessee. We would, therefore, hold that the Income-tax Officer was not justified in including the sum of ₹ 84,600 (Rs. 84,900 minus ₹ 300) as income of the account year 1944-45 relevant for the assessment year 1945-46. If so advised, the Income-tax Officer may take suitable action for the assessment year 1944-45. The assessee made an application to the Tribunal under sub-section (1) of section 66 of the Act urging that a question of law arose out of the aforesaid observations of the Tribunal and prayed that that question be referred to the court. His application, however, was rejected by the Tribunal. The assessee then moved this court under sub-section (2) of section 66 of the Act and on a requisition made by this court, the Tribunal has referred the following question of law to this court: Whether in law and in the circumstances of the case the Tribunal was justified in finding that the assessee has failed to account for the source of ₹ 84,600 and observing that the said amount must be brought to tax as income of the accounting year 1943-44? Before we proceed to deal with the contentions, it may be state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether in making the observations to which the assessee has objected, the Tribunal was dealing with any of the contentions not raised before it. Now, to ascertain what contentions were raised before an appellate court, the grounds of appeal as well as the contentions summarised in the appellate order would be relevant. Turning to the appellate order in paragraph 3 thereof the Tribunal has summarised the contentions raised before it. The first contention relates to the validity of the notice under section 34. The second ground urged was that the explanation offered by the assessee in respect of the sum of ₹ 84,900 should have been accepted. In the third contention it was urged that even if it was assumed as an income from undisclosed sources, it could not be included in the total income for tax purposes inasmuch as the investment, i.e., purchase of shares, was made at Jamnagar, a place in the then native State, and was not liable to be taxed. The fourth contention related to the acceptance of the assessee's explanation relating to the deposits in the name of his wife, and the fifth contention is summarised by the Tribunal in the following terms: That if the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iate assessment year. According to Mr. Pandit, no alternate year was suggested by the assessee before the Tribunal. Mr. Pandit further urged that if the grounds of appeal are looked into, the position would be clear that the assessee at no time had suggested that if the sum of ₹ 84,900 was income from undisclosed sources, then it was the income of the assessment year 1944-45. Pointing us to paragraph 10 of the statement of case, he urged that he had also raised an objection in this respect at the time the statement of the case was drawn up. We, however, find that the Tribunal has not accepted the contention of the assessee to be correct. On the other hand, the Tribunal has stated that the contentions urged before it had been correctly stated by it in its appellate order. There is not even an affidavit filed on behalf of the assessee to the contrary. That being the position, the statement of the case must be accepted in this respect. It may be true that the contention had not been raised in the grounds of appeal in the form it was raised before the Tribunal but that fact, by itself, in our opinion, would not debar the Tribunal from proceeding to deal with the contentions raise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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