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TMI Blog1971 (8) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... previous years being the Diwali Samvat 2013-2014 and 2014-2015. In the course of the assessment proceedings relating to those years, the assessee claimed before the Income-tax Officer that the income of the property at premises Nos. 46A and 46B, Wellesley Street, Calcutta, should not be taxed in his hands as it was trust property in his hands. The Income-tax Officer rejected that claim and included that income in the total income of the assessee. The Appellate Assistant Commissioner and the Income-tax Appellate Tribunal affirmed the decision of the Income-tax Officer. An application under section 66(1) was rejected by the Tribunal on the ground that no question of law arose from its order. But, the High Court, on an application by the assessee under section 66(2), directed the Tribunal to state a case and submit the question mentioned earlier to it for obtaining its opinion. After hearing the parties, it answered the question in favour of the assessee. The Commissioner has appealed against the order of the High Court. The premises in question were purchased by the assessee on September 30, 1940, purporting to act as the trustee of the trust created by his wife, Smt. Benarsi Debi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the records that the assessee took up in appeal to the Tribunal one of the orders of assessments made against him after the Tribunal's order referred to earlier. Therein, he did not contest the validity of the inclusion of the income of the premises in question in his income though he took up other grounds. During the assessment years 1942-43 to 1957-58, the income of those premises was assessed in the hands of the assessee. Suddenly, in the assessment proceedings for the assessment years 1958-59 and 1959-60, the assessee revived his old plea. As mentioned earlier, the same was rejected by the Income-tax Officer, the Appellate Assistant Commissioner as well as by the Tribunal in a somewhat summary manner possibly because of the past history of the case. As stated earlier, after the Tribunal the appeal of the assessee, the assessee moved the Tribunal under section 66(1) for referring to the High Court the question set out earlier. The Tribunal refused to accede to his prayer. It held that no question of law arose from its order. Thereafter, he moved the High Court under section 66(2) of the Act and the High Court was pleased to call upon the Tribunal to state a case and submit to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that for arriving at its finding the Tribunal had to interpret the two documents referred to in that question. This conclusion of the High Court appears to us to be an erroneous one. The Tribunal did not interpret those documents. It merely found itself unable to accept the correctness of some of the recitals in those documents. That does not mean that the Tribunal interpreted those documents. Whether to accept those recitals or not was within the province of the Tribunal. Unless its conclusion is held to be perverse or is not supported by any evidence or is based on irrelevant evidence, the High Court had no jurisdiction to interfere with its findings. We shall presently see what the High Court has to say about that finding. The reference under section 66(2) was heard by a Division Bench of the Calcutta High Court consisting of Mukharji J. (as he then was) and Sen J. The learned judges concurred in the decision though each one of them wrote a separate opinion. As seen earlier, they answered the question in favour of the assessee. The grounds on which Sen J. based his conclusions are: (1) the apparent statements in the documents must be presumed to be real until the contrary is e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the reality of the recitals made in those documents. Now, coming to the question of onus, the law does not prescribe any quantitative test to find out whether the onus in a particular case has been discharged or not. It all depends on the facts and circumstances of each case. In some cases, the onus may be heavy whereas, in others, it may be, nominal. There is nothing rigid about it. Herein the assessee was receiving some income. He says that it is not his income but his wife's income. His wife is supposed to have had two lakhs of rupees neither deposited in banks nor advanced to others but safely kept in her father's safe. Assessee is unable to say from what source she built up that amount. Two lakhs before the year 1940 was undoubtedly a big sum. It was said that the said amount was just left in the hands of the father-in-law of the assessee. The Tribunal disbelieved the story, which is, prima facie, a fantastic story. It is a story that does not accord with human probabilities. It is strange that the High Court found fault with the Tribunal for not swallowing that story. If that story is found to be unbelievable as the Tribunal has found, and in our opinion rightly, then the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal. Therefore, the courts and Tribunals have to judge the evidence before them by applying the test of human probabilities. Human minds may differ as to the reliability of a piece of evidence. But in that sphere the decision of the final fact finding authority is made conclusive by law. The fact that the assessee kept a separate account in respect of the income and expenditure relating to the premises in question is of little evidentiary value if one takes into consideration the past history of the case. At any rate what value should be attached to that circumstance is for the final fact finding body. The circumstance that the assessee had at the very outset produced the sale deed and the trust deed before the Income-tax Officer is of no significance. Those documents formed the sheet anchor of the assessee's case. There was no particular virtue in the assessee's producing those documents before the Income-tax Officer. In our opinion, no question of law arose from the order of the Tribunal and, therefore, the High Court was not justified in directing the Tribunal to state a case and we are further of opinion that the answer given by the High Court to the question referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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