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TMI Blog1949 (8) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... Barrister and an Advocate and on his behalf it was said that Mr. Bose had given up all idea of practising in the future or, in short, had discontinued his practice. It is accepted by the Tribunal that Mr. Bose dismissed his clerk and also gave up his Chambers which were acquired by him for his professional work. On the other hand, the taxing authorities contended that he had not discontinued his practice, but had only suspended it temporarily during this period of imprisonment. They urged that Mr. Bose has now resumed practice which went to show he had never intended to discontinue and that the period of incarceration merely operated to suspend his professional work. When the matter came before the Tribunal the Income-tax authorities sought to raise an entirely new point. It was suggested that Mr. Bose had previously been imprisoned and had been compelled to give up his practice. Mr. Bose, it was said, had applied for and obtained relief under Section 25(3) of the Act on the ground that he had discontinued practice as a result of this earlier period of imprisonment. That period of imprisonment, it was suggested. was from February, 4, 1932, to July, 1935. No reference had bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the previous year was identically that on which tax had been charged under the provisions of the Indian Income-tax Act, 1918. (3) Whether in the facts and circumstances of this case relief under Section 25(3) was properly allowed by the Tribunal. As I have stated previously the Tribunal stated a case on question No. (3) But refused to state a case on question Nos. (1) and (2). The Commissioner of Income-tax has preferred a petition to this Court praying that the Appellate Tribunal be called upon to state a case upon question Nos. (1) and (2). But in our view the Tribunal cannot be compelled to state a case on these questions. Whether Mr. Bose had discontinued his profession in the year 1931 and whether he had obtained relief under Section 25(3) of the Indian Income-tax Act we matters specially within the Knowledge of the Income-tax authorities. When the matter was before the Income-tax Officer that point could have been taken. But the Income-tax Officer preferred to rely upon a finding that in the year 1941 Mr. Bose did not discontinued practice but merely suspended practice. When the matter came on appeal before the Assistant Commissioner the Income-tax authoriti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l evidence either oral or documentary before the Tribunal, but if the Tribunal requires any document to be produced or any witness to be examined or any affidavit to be filed to enable it to pass orders or for any other substantial cause, or if the Income-tax Officer has decided the case without giving a sufficient opportunity to the assessee to adduce evidence either on points specified by him or not specified by him, the Tribunal may allow such document to be produced or witness to be examined or affidavit to be filed or may allow such evidence to be adduced. It is clear from this rule that the power of the Appellate Tribunal to admit additional evidence are strictly limited. Dr. Gupta has however contended that the Tribunal could allow this new point to be taken and allow additional evidence to be given by reason of the provisions of sub-section (4) of Section 33 of the Indian Income-tax Act. That sub-section provides:- The Appellate Tribunal may, after giving both parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit and shall communicate any such orders to the assessee and to the Commissioner . Dr. Gupta laid stress on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In that case the new point sought to be raised was purely a legal one and did not require any further investigation into the facts. Permission had been refused to the parties to raise this new point on purely technical grounds and that being so the Nagpur High Court were of opinion that the refusal to all this new point to be urged was an arbitrary decision. The present case is however vastly different. Here an entirely new point is sought to be raised and entirely fresh evidence is sought to be adduced to establish this new point. The point was one within the knowledge of the Income-tax authorities and their failure to raise the point and to produce evidence to establish it was entirely due to their own fault or negligence. Even if the point was overlooked at first it could at least have been raised before the Assistant Commissioner but that was not done. It was only raised at this very late stage and in my view it cannot possibly be said that the Appellate Tribunal acted arbitrarily in refusing leave to the taxing authorities to raise this point and to adduce evidence to establish it. That being so, I am not inclined to call upon the Tribunal to state a case on questions No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is such that he will never be fit to practise again. On receiving such advice an Advocate may send off his clerk, and dispose of his chambers and his books. If however the medical advisers were wrong and such members of the Bar recovers sufficiently to be able to practise would the fact that he resumed his practice disprove a contention that that man had after the receipt of medical advice discontinued his practice? It appears to me on the facts which I have stated that such a member of the Bar could truly be said to have discontinued his practice. When he unexpectedly recovered good health it may well be said that he did not resume his old practice, but he started as it were a fresh practice. What determines the matter appears to me to be the state of the assessee's mind and that is to a very large extent, if not altogether, a question of fact. The Tribunal in this case have considered all the relevant facts and have come to the conclusion that the assessee when he was imprisoned in 1941 gave up all further idea of practising or, in other words, he discontinued his profession. The fact that he has returned to it was evidence which the Tribunal was entitled to take into account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal establishment changes mind some years later and resumes practice then there was no discontinuance because according to the revenue authorities discontinuance means complete cessation of the profession for ever. In that view in the case of a profession complete cessation can only be predicated with the death of the assessee. That would be an unreasonable view to take in the case of a professional gentleman. The language of Section 25(3) does not warrant such an extreme contention. If such contention is sound then a professional man can never get the benefit of Section 25(3) until he dies and the relief can only be claimed or obtained by his legal representatives or his successor-in-interest. It is really a question of the intention of the assessee at the relevant point of time. As the learned Chief Justice has pointed out the Tribunal had certain facts before them and they were justified in coming to a finding on those facts. In a letter from Coorg addressed to the revenue authorities Mr. Bose informed them that he had been arrested by the Government on December 11, 1941, at Calcutta and that he had been kept in detention for an indefinite period and that he was still detained ..... X X X X Extracts X X X X X X X X Extracts X X X X
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