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TMI Blog1955 (9) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed as a bad debt. 3. An appeal was filed by the assessee against the order of the Income-tax Officer before the Appellate Assistant Commissioner of Income-tax as also before the Income-tax Appellate Tribunal, Bombay, but these appeals failed. The assessee then filed an application under section 66(1) of the Indian Income-tax Act before the Income-tax Appellate Tribunal, Bombay, requesting it to state the case to this Court. The following questions of law were raised by the assessee by that application: (i) Whether in the circumstances of the case there was sufficient evidence to come to the conclusion that ₹ 7,829 are income from undisclosed sources? (ii) Whether in the circumstances of the case there was sufficient evidence to come to the conclusion that the claim of ₹ 6,360 as bad debt was time-barred? 4. The Income-tax Appellate Tribunal held that no question of law arises in the case and dismissed the application. Hence this application. 5. The learned counsel for the applicant submits that questions of law that arise in this case are as follows: (1) Whether in the circumstances of the case there is evidence to come to the conclusion that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There was no finding in any previous year that the said source amounted to ₹ 50,000. (c) Allowing the claim of the assessee in the previous year, therefore had no binding effect in considering the question in the year in question. (d) The assessee failed to produce the account books regarding the old money-lending business to satisfy the Tribunal that the said amount could be brought from the said source. 8. In our opinion, the aforesaid reasoning of the Tribunal and findings are based on material on record and give rise to no question of law. True, non-maintenance of the home chest account in itself may not be a sufficient cause for rejecting the application, but it will been that in the present case the Tribunal has not rejected the explanation of the assessee on the sole ground. The explanation given by the assessee in the year in question is in the statement of Munnalal dated 27th March, 1951. According to that statement. The said amount of ₹ 7,829 was brought in his account from his past earnings in money-lending business which had been closed. He earned about ₹ 25,000 from his old money-lending business and it was kept with him and not brought in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sum of ₹ 9,701 in the assessment year 1949-50. But it will be seen that the total of these amounts was within the limit of the alleged source. It is thus clear that at the end of Diwali, 1949, the balance remaining with Munnalal could be near about ₹ 2,000 even on the assumption that his statements were true. It is difficult to follow how the amount of ₹ 7,829 was brought during the year in question from this source. 12. Further, admittedly, according to the applicant, there are account books of the old money-lending business which were checked by the Income-tax Officer and had been initialled by him. The Tribunal has observed that the applicant failed to produce these books. These are relevant documents. If the assessee wanted to establish that from that source the amount in question could be brought into the business of the assessee, these account books should have been produced to substantiate his claim. They would show what amount was invested in the old money-lending business, how much had been recovered by the year 1940-41, and what amount had remained outstanding. Admittedly, the amounts recovered up to the closure of that money-lending business is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment to give positive evidence regarding the source from which the assessee made the disputed income. In fact, the burden of establishing in such case that a disputed item is not the assessee's income lies on the assessee and not on the Department. Reference was made to two decisions from other courts to the same effect: G.M. Madappa v. Commissioner of Income-tax Madras [1948] 16 I.T.R. 385 and Mahabir Prasad v. Income-tax Officer [1947] 15 I.T.R. 395. 16. In R.S.P.S. Sial and Sons v. Commissioner of Income-tax (supra) the Court made no reference to the earlier decisions of the Division Bench already answering the question raised adversely to the assessee. Even if the decision relied upon be regarded as an authority in support of the assessee the court is not bound to follow it because it was given per incuriam: Yound v. Bristol Aeroplane Co. Ltd. [1944] 1 K.B. 718 Per incuriam means without the Court's attention having been drawn to the relevant authorities : Concise Law Dictionary by Osborn, Fourth Edition. To the same effect re the observations of Mudholkar, J., sitting in the Full Bench in Kanglu Baula v. Chief Executive Officer, Janpad Sabha Durg A.I.R. 1955 Nag. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -contained period of time in regard to which profits earned or losses sustained have to be ascertained. Whether a debt is bed debt, and if so, at what point of time, it became a bed debt, are question of fact. The burden of proving that a debt has become bad lies on the assessee: L. Bani Mal Dalal v. Commissioner of Income-tax [1941] 9 I.T.R. 222. Not only is the assessee to prove that the debt or loan has been written off but he should also satisfy the Income-tax Officer that it became irrecoverable in the year of account : Raja Bahadur Mukundlal Bansilal v. Commissioner of Income-tax Bombay City [1952] 22 I.T.R. 94. The letter relied upon by the assessee leads to no such inference as contended by him. 20. It is urged by the assessee that if the debt was not treated as a bad debt in the year of account or earlier, he might be debarred from climbing deduction in any subsequent year because of the remark of the Tribunal. It is well settled that the principle of re judicate is not applicable to income-tax cases. Each year is a separate unit that falls for scrutiny. The finding that the debt in question did not become a bad debt relates to the accounting period under consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X
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