9911796707
TMI Blog2017 (11) TMI 724X X X X Extracts X X X X X X X X Extracts X X X X ..... t was made in the court below that their evidence had not been taken. There is no substance in this contention. We have considered all the contentions urged on behalf of the appellant at some length. We would like to make it clear that we are not sitting here as a court of appeal on facts. We have examined the record only with a view to see whether there is any misdirection or non-direction, such as is likely to have affected the result, and we have come to the conclusion that there is none, and that the finding of the Tribunal is not therefore open to attack. - Decided in favour of the assessee and against the department. - D. B. Income Tax Appeal No. 276 / 2010 - - - Dated:- 5-9-2017 - K. S. Jhaveri And Inderjeet Singh, JJ. For the Appellant : Mr. R.B. Mathur For the Respondent : Mr. Sanjay Jhanwar with Ms. Archana JUDGMENT 1. By way of this appeal, the appellant has assailed the judgment and order of the tribunal whereby tribunal has dismissed the appeal of the department and confirmed the order of the CIT(A). 2. This court while admitting the appeal on 1.11.2010 framed following substantial question of law:- 1. Whether in the facts and circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ient in the name of M/s Maru Securities (P) Ltd. (client code NS02) dealing through the member M/s Moti Commodities Futures (P) Ltd (TMID00036). After receiving the said information, the AO required the explanation from the assessee and a show cause was given to the assessee that why this loss should not be treated as genuine loss. Thereafter, the explanation furnished was reproduced by the AO in the body of the assessment order. Thereafter the AO had summarized the submission given and after considering it the AO has given a finding that the assessee company was not able to explain the basis of claim of loss at ₹ 15,26,110/- and accordingly the same was disallowed. 3.2 Further, regarding balance loss of ₹ 92,36,713/-, the AO has given a finding that it was not an issue related to one, two or ten transaction but such sale transaction run into 517 crores and purchase transaction run into ₹ 518 crores and taking together transactions worth more than ₹ 1000 crore have been undertaken and therefore, the argument given by assessee company that it was because of punching error cannot be accepted. The contract note issued by Moti Commodities Futures (P) Ltd. Sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntracts which resulted in these profits were made at Gwalior as contended by the appellant or at Bombay as held by the Tribunal. That would clearly be a question of fact, and the decision of the Tribunal thereon would not be liable to be challenged in these proceedings. Counsel for the appellant does not dispute this position, but he contents that a finding of the Tribunal even on a question of fact would be erroneous in law, if there is no evidence whatsoever to support it or if it is perverse. This question was quite recently considered by this court in Meenakshi Mills v. Commissioner of Income-tax, and the law was thus stated : The position that emerges on the authorities may thus be summed up : (1) When the point for determination is a pure question of law such as construction of a statute or document of title, the decision of the Tribunal is open to reference to the court under section 66(1). (2) When the point for determination is a mixed question of law and fact, while the finding of the Tribunal on the facts found is final in decision as to the legal effect of that finding is a question of law which can be reviewed by the court. (3) A finding on a q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter in its proper perspective, we must look at the picture at the other end, and consider the evidence adduced to prove that the agreements were made in Gwalior. Now, the facts found by the Incometax authorities are these : The three brokers in whose names the contracts stood were, having regard to their means, not likely to have been thought of for contracts of the magnitude which we have. They had not done business in cotton futures prior to the present contracts nor subsequent thereto. They had no bank accounts and large amounts to the tune of ₹ 30 lakhs are supposed to have been paid to them in cash by J. R. Pillani, Gwalior, and turned over by them in cash to the appellant. They produced no accounts for their dealings and the ankdas produced by them at a late stage were found to have been freshly written up. When Durgaprasad Mandalia, the manager of the appellant, was asked as to what securities he held as cover in respect of the huge transactions he entered into with men of such means, he answered that they were men of character. Sagarmal Dingliwala, the manager of J. R. Pillani, Gwalior, at the relevant period, was asked the same question, and he replied that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipals and principals, that there were clauses therein providing for delivery and payment at Gwalior and that there was no reason for not accepting them as correct. But it is pointed out by the Income-tax authorities that the contracts provide for the business being done in accordance with the rules and bye-laws of the East India Cotton Association, Bombay, that according to bye-law No. 44-A of that Association every contract made subject to these bye-laws shall take effect as contract wholly made in Bombay , and that further under the rules, the delivery of the goods must take place in Bombay. In view of this, the Income-tax Officer was of the opinion that the contracts in question had been got up for the purpose of supporting the present version of the appellant. 14. Mr. Kolah also contended that the evidence of Birlas would have been material in deciding whether they settled the contracts at Bombay as contended for by the Department and that though the order of remand stated that their evidence should be taken, that had not been done and that was a serious irregularity. The portion of the order of remand relevant for the present purpose is as follows : The managing direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed can contend that the belief was not bona fide or was based on vague, irrelevant and non-specific information or that the material did not have any rational connection or a live link for the formation of the requisite belief. This is what the Supreme Court said: From a combined review of the judgments of this Court, it follows that an Income-tax Officer acquires jurisdiction to reopen an assessment under Section 147(a) read with Section 148 of the Income-tax Act, 1961, only if on the basis of specific, reliable and relevant information coming to his possession subsequently, he has reasons, which he must record, to believe that, by reason of omission or failure on the part of the assessed to make a true and full disclosure of all material facts necessary for his assessment during the concluded assessment proceedings, any part of his income, profits or gains chargeable to income-tax has escaped assessment. He may start reassessment proceedings either because some fresh facts had come to light which were not previously disclosed or some information with regard to the facts previously disclosed comes into his possession which tends to expose the untruthfulness of those facts. In su ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
