9911796707
TMI Blog1994 (2) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... nch, Amritsar, to draw up a statement of the case and to refer the following questions of law: "1. Whether, on the facts and in the circumstances of the case, the learned Tribunal was right in law in directing the Assessing Officer to treat the receipt of Rs. 8,34,650 from the Government Departments as 'advance' when the Government Departments cannot pay any advance without physical receipt of goods purchased and payments were held to have been made against sale bills not recorded by the assessee in books of account maintained by the firm ? 2. Whether, on the facts and in the circumstances of the case, the learned Tribunal was justified in not treating the receipt of Rs. 8,34,650 as sales when the said receipt is supported by the sale b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is contrary to the treasury rules and it is nothing but a device to suppress the sale of bricks otherwise made which finds no reflection in the accounts maintained by the assessee and so dismissed the appeal. Before the Tribunal, once again, it was stressed that the conclusion arrived at by the authorities below is not based on facts, but on surmises and conjectures. It was urged that the assessee is maintaining a regular system of accounting and the advance amount received from the Government agencies and duly shown in the balance-sheet, has been erroneously taken to be on account of sales, which, according to the Revenue Department, are not reflected in the accounts made by the assessee. The assessee, thus, contended that without any ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment, the Commissioner of Income-tax filed petition under section 256(1) of the Income-tax Act, 1961, before the Tribunal. The Tribunal came to the conclusion that no referable question of law arises out of the order of the Tribunal and so declined the request made. Dealing with questions Nos. 1 and 2, it was held that the Tribunal has nowhere held that specific receipt should be treated as advances. Similarly, the Tribunal found no merit in question No. 3 as it was held that the Tribunal is competent to pass any order in appeal as it deems fit and proper which includes the power to refer the case back. As regards question No. 4, it was held that the same is wholly misconceived as no verbal claim was made by the assessee. In fact, as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent-assessee, in support of the order of the Tribunal has urged that the direction given by the Tribunal is perfect and legal in the facts and circumstances of the case. According to learned counsel, none of the questions as framed by the petitioner arises out of the order of the Tribunal, nor can the same be termed questions of law and thus referable to this court. According to counsel, the direction given by the Tribunal is quite clear, i.e., the advance received by the assessee should be treated as advance and not sales and the Assessing Officer is to verify when the sales, if any, were actually effected in respect of these advances. We have heard learned counsel for the parties and perused the order of the Income-tax Officer, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsideration to determine the profit/income of the assessee. Since it is the case of the assessee that the Government agencies had given these advances and in fact, no sales had been effected, the burden to prove these assertions ought to have been placed upon the assessee. On a careful perusal of the relevant portion of the order reproduced above, we find this submission devoid of any substance. The assessee in clear terms has made assertions that these advances were received by him from the Government agencies towards the sales to be made later on. Since the alleged advances are from the Government agencies such amount must have been received by the assessee in the form of cheques or bank drafts, which in turn must be bearing the date of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same is during the assessment year under scrutiny, such sale proceeds are to be included to arrive at profit/income of the assessee and normally, such an amount is to be deducted from the amount shown as advance in the balance-sheet. All these matters are yet to be examined by the assessing authority on the basis of evidence which may come to its notice. Such like matters are ordinarily questions of fact and not questions of law. The two judgments cited by learned counsel for the petitioner, i.e., McDowell and Co. Ltd. v. CTO [1985] 154 ITR 148 (SC) and CIT v. British Paints India Ltd. [1991] 188 ITR 44 (SC), have, in fact, no applicability to the facts of the present case. Thus, no useful purpose would be served by dilating upon the ratio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
