9911796707
TMI Blog1990 (3) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... rectly from the said order of the Tribunal. However, in order to appreciate the controversy in this case, the facts reiterated by the High Court of Kerala in its said judgment and order are important. It had observed as follows : "For the assessment year 1969-70, the petitioner filed a return declaring a total income of Rs. 9,571. In completing the assessment, the assessing authority proceeded on the basis that the assessee was the owner of the gold seized on October 9, 1968, and confiscated by the Customs authorities worth Rs. 20 lakhs and, accordingly, the Income-tax Officer treated the sum of Rs. 20 lakhs as income from undisclosed sources applying the provisions of section 69A of the Income-tax Act, 1961. On appeal, the Appellate Assi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amounting to Rs. 16,19,395 and Rs. 20,00,000 ; and (3) as the tax has already been collected from the amount of Rs. 20,00,000, no interest was payable." The High Court noted that the Tribunal could not accede to the requests of the petitioner as these could not be considered as mistakes apparent from the record. These points had not been raised by way of cross-appeal or cross-objections. Thereafter, the assessee filed a petition under section 256 of the Act seeking reference of the following questions of law: "1. Whether the Tribunal is right in law in its view that the right to file an application under section 254(2) of the Income-tax Act, 1961, is open to be exercised only by the applicant and not by the respondent in the appeal bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the context as found by the Tribunal as the income of the assessee. The assessee's further contention was that, in view of the decision of this court in CIT v. Piara Singh [1980] 124 ITR 40, even if Rs. 20 lakhs could be treated as the income of the assessee inasmuch as this has been ordered to be confiscated, there was a business loss as held in the said decision of this court. Therefore, this question should have been gone into which was sought to be raised by a miscellaneous application before the Tribunal after disposal of the appeal by the Tribunal. The principle by which this should be determined has been fairly laid down by this court in CIT v. Scindia Steam Navigation Co. Ltd. [1961] 42 ITR 589, wherein this court, at page 612, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question, and the High Court rightly entertained it. It is argued for the appellant that this view would have the effect of doing away with limitations which the Legislature has advisedly imposed on the right of a litigant to require references under section 66(1), as the question might be framed in such general manner as to admit of new questions not argued being raised. It is no doubt true that sometimes the questions are framed in such general terms that, construed literally, they might take in questions which were never in issue. In such cases, the true scope of the reference will have to be ascertained and limited by what appears on the statement of the case. In this connection, it is necessary to emphasise that, in framing questions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f questions which arise out of, the order of the Tribunal, but which were not argued, because they could not (in the absence of any indication as to what the Tribunal was going to decide) be argued." As mentioned hereinbefore, this is an application for leave to appeal from the decisions of the Tribunal and the High Court under article 136 of the Constitution. The real and substantial question posed and canvassed before the Tribunal in its appellate order and in the appeal, as is manifest from the facts stated before, was, whether a sum of Rs. 20 lakhs could, in the facts and the circumstances, be considered as part of the income of the assessee and as such suffer taxation. Now the question sought to be raised is, whether in view of the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion was originally completed at a total income of Rs. 1,571. Subsequent to the completion of the original assessment, the petitioner filed a return declaring total income of Rs. 9,571. The Income-tax Officer issued notice under section 148 of the Act. The Tribunal ultimately had accepted the Revenue's contention, restored the addition of Rs. 20 lakhs made by the assessing authority, inter alia, holding that the onus was on the petitioner to prove that the gold was not owned by him which onus the petitioner had failed to discharge. The Tribunal had gone into and adjudicated on the question substantially raised by the petitioner that the confiscated gold could not be treated as the income of the petitioner. The Tribunal rejected the appl ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
