9911796707
TMI Blog1990 (2) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... ively, by way of subscriptions from its members and Rs. 13,034 and Rs. 14,010, respectively, by way of interest on deposits with banks. The assessee spent in furtherance of the objects of the association, a total amount of Rs. 2,56,019 for the year 1972-73 and Rs. 2,56,529 for the year 1973-74, thus leaving an excess income of Rs. 5,387 and Rs. 7,070 over the expenditure, respectively, for the two assessment years. The assessee contended that the subscriptions received by it from its members were not income. The Income-tax Officer, however, while accepting that the subscriptions received by the assessee from its members are not income, treated the entire accumulation of Rs. 5,387 and Rs. 7,070 as relating to the assessee's interest income and brought the said amount to tax since the assessee had not followed the procedure prescribed in section 11 for claiming exemption in respect of the accumulation. The assessee filed appeals before the Appellate Assistant Commissioner. The appeals were dismissed upholding the assessments made by the Income-tax Officer. In second appeal before the Income-tax Appellate Tribunal (for short "the Tribunal"), the Tribunal held that there was no mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Courts holding that subscription received by the assessee-association from the members was of income nature and hence taxable and that such information received by the Income-tax Officer subsequent to the making of the assessments and the information could have led the Income-tax Officer to believe that income had escaped assessment in so far as the subscription received by the assessee from its members was not brought to tax in the original assessment year 1972-73. So far as the assessment years 1973-74 to 1975-76 are concerned, the Tribunal held that the reopening made on the basis of the definition of the expression "income" in section 2(24) of the Incometax Act, as amended is valid since the information was such as to lead the Income-tax Officer to entertain a reasonable belief that income had escaped assessment. Accordingly, the Tribunal held that the reopening of the assessments was valid. The Tribunal considered the more important question whether the subscription received by the assessee during the relevant assessment years is to be taxed. This question depended upon the fact as to whether the test of mutuality is satisfied in the case of the assessee. The Tribunal found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n whether the finding of the Tribunal that the assessee is not a mutual association is correct or not. Further, counsel submitted that there cannot be such a finding in view of the fact that for the earlier years of assessment, with regard to subscriptions received from the members, the assessee was treated as a mutual association and the question whether the subscription received by the assessee from its members is not taxable has been answered in Income-tax Reference No. 149 of 1980 and Original Petition No. 6627 of 1981, in favour of the assessee. According to counsel, this fact ought to have been taken note of by the Tribunal and the Tribunal has gone wrong in holding that the assessee is not a mutual association. Before us, the only question referred is whether the Tribunal was right in its decision that the subscription received by the assessee from its members is income liable to be taxed under the Income-tax Act, 1961. This question has to be answered on the basis of the findings recorded by the Tribunal. The question whether the finding recorded by the Tribunal on certain facts is with no material or no evidence, is a separate question, and so long as such a question has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is court has no jurisdiction to go behind or to question statement of facts made by the Tribunal in its appellate order or the statement of the case, unless there is no evidence to support them. As we said earlier, there is no question raised on the ground that the finding of fact is based on no evidence, since no question challenging the finding of fact has been raised in these cases. We are of the opinion that the court cannot disturb or go behind any finding of fact given by the Tribunal, even on the ground that there is no evidence to support it, unless it has been specifically referred as a question of law to be decided by this court under section 256(1) of the Income-tax Act. Counsel for the assessee confined his submissions exclusively to the question that the assessee is a mutual association and the finding of the Tribunal that it is not mutual association is illegal, since it was made without reference to the earlier findings on the said question by the Tribunal for the earlier assessment years. Counsel for the assessee referred us to the decision in Punjab University v. Vijay Singh Lamba, AIR 1976 SC. 1441, and wanted to draw our attention to the following passage (at p. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Properties Ltd. V. CIT [1971] 82 ITR 547, the Supreme Court has very plainly stated thus (headnote): "'When the question referred to the High Court speaks of 'on the facts and in the circumstances of the case', it means on the facts and circumstances found by the Tribunal and not facts and circumstances that may be found by the High Court on a reappraisal of the evidence. In the absence of a question whether the findings were vitiated for any reason being before the High Court, the High Court has no jurisdiction to go behind or question the statement of facts made by the Tribunal." This court in Haji A. Abdul Khader Sahib v. CIT [1973] Tax LR 1410, held thus (at p. 1411): "It is now very well settled by a long line of decisions of the Supreme Court that the expression facts and circumstances that normally precede or preface any question that is referred to this court must take in not facts and circumstances found by this court but facts and circumstances found by the Tribunal in its order. It is equally well-settled that if there is no specific challenge of any finding of fact by the Tribunal by an appropriate question being raised and referred to this court, this court is pre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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