9911796707
TMI Blog1996 (11) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... able in the hands of the assessee, the same being usufruct income, and the assessee being only an occupier of the said property ? (iii) Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was justified in holding that no interest under sections 139(8) and 217 is chargeable (iv) Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was justified in deciding this appeal by a Bench consisting of a single member despite the fact that income determined by the Assessing Officer exceeded Rs. 1,00,000 ?" The assessee is an individual. The assessment in this case for the assessment year 1980-81 was originally completed under section 143(3) on January 31, 1982, on a total income of Rs. 1,12,804 as against the returned income of Rs. 14,000. The same was, however, reopened under section 147 by issue of notice under section 148 dated October 29, 1984. The assessee did not furnish any return of income in compliance with the said notice and, therefore, a notice under section 142(1) was issued on March 29, 1989, in response to which it was stated that the return already filed may be treated as the return filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on stands concluded and hence though a question of law arises, it is not fit for reference to the High Court. The Tribunal further observed that so far as question No. (iv) is concerned, it does not arise out of the Tribunal's order though it is a different matter, i.e., the subject-matter of question No. (iv) may or may not be challenged before the High Court by way of proper writ. As and when an application was filed under section 256(2) of the Income-tax Act a notice was served on the respondent, Shri Mahendra Singhji, who did not choose to engage any advocate and thereafter filed a written submission by registered post addressed to the Registrar of this court on December 15, 1995. It was submitted at his behest theft the order of the Tribunal was wholly correct and no direction to the Tribunal was required in terms of section 256(2). It was submitted on behalf of the respondent that there was no new material on record to support the reopening of the assessment under section 147 and there was no jurisdiction for including the income from the Samore Bagh property in the hands of the respondent. The Commissioner of Income-tax stated that the reassessment was on the basis of we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion of underassessment or any fact which escaped assessment that would be sufficient to give jurisdiction to the Income-tax Officer to issue the notice of reassessment or reopen the assessment under section 34. The existence of the belief can be challenged by the assessee but not the sufficiency of the reasons for the belief. In A. L. A. Firm v. CIT [1991] 189 ITR 285 (SC), it was held that the material which constituted information and on the basis of which the assessment was reopened having been previously missed by the Income-tax Officer or that material not having been considered at the time of original assessment, though it was a decision of 1961 and the Income-tax Officer could have known of it, had he been diligent, the obvious fact was that he was not aware of the existence of that fact then and when he came to know about it, he rightly initiated the proceedings for assessment. In Phool Chand Bajrang Lal v. ITO [1993] 203 ITR 456 (SC), it was held that when subsequent to the completion of the original assessment proceedings, on making an enquiry, the Income-tax Officer came to know that the Calcutta company from whom the appellant claimed to have borrowed the loan of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o his possession which tends to expose the untruthfulness of those facts. In such situations, it was not a case of mere change of opinion or the drawing of a different inference from the same facts as were earlier available but this amounts to the Income-tax Officer acting on "fresh information". Since the belief is that of the Income-tax Officer, the sufficiency of the reasons for forming the belief is not for the court to judge but it is open to an assessee, to establish that there in fact existed no belief or that the belief was not a bona fide one or was based on vague, irrelevant and non-specific information. To that limited extent, the court may look into the conclusion arrived at by the Income-tax Officer and examine whether there was any material available on the record from which the requisite belief could be formed by the Income-tax Officer and further whether that material had any rational connection or a live link with the formation of the requisite belief. It would be immaterial whether the Income-tax Officer at the time of making the original assessment could or could not have found by further enquiry or investigation whether the transaction was genuine or not, if, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the case of the assessee and it was contended that he being the holder of an impartible estate, the properties of the estate belonged to the Hindu undivided family of which he was the "karta" and so the income from any property transferred by the assessee to his wife cannot be included in his total income. The transfer in such a case would not be a transfer by an individual to his wife. The Tribunal further held that though for a limited purpose an impartible estate may be regarded as belonging to the Hindu undivided family, the holder for the time being is the absolute owner of the estate during his lifetime with the power of alienation by gift or by will. The Patna High Court answered the question that the income from house property transferred by the holder of an impartible estate to his wife cannot be taken as a transfer by the husband of his assets to his wife. We find it primarily a question of fact and the judgment cited by Mr. Bhandawat does not help us to support his contention. Mr. Bhandawat contended that the former ruler as per family custom could give out his properties to anyone who is dependent upon him for maintenance. Mr. Bhandawant further contended that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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