9911796707
TMI Blog1981 (12) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... ck each which they had given to the said company on hire and the hire charges were Rs. 2,000 per month. It stands undisputed that the period of month is to be computed from the first of every calendar month ending on the last day of the month. After the period ending 31st March, 1958, the company in one of its meetings passed a resolution on 30th April, 1958, which may with benefit be reproduced below : " Resolved unanimously that in consideration of the heavy loss sustained by the company for the year ended 31-3-1958, offers of the following directors for forgoing the benefits enjoyed during the said year be and are hereby accepted. Relevant entries may, therefore, be given effect to in the books of account relating to the said year on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders were framed against the petitioners, vide annex. A. They unsuccessfully appealed before the AAC where the additions were affirmed, vide annex. B. Their respective revision petitions before the Commissioner too failed. They then approached this court under art. 226 of the Constitution since the Commissioner had not afforded any opportunity to the petitioners of being heard. Those writ petitions, being C. W. P. Nos. 3006 and 3007 of 1965, were allowed by a single judge of this court, vide annex quashing the orders of the Commissioner. The matters were remitted to the Commissioner for rehearing. This time, after hearing the respective petitioners, the Commissioner again rejected the revision petitions, vide orders annex. D, respectively, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een taken by the petitioners to forestall the accrual. The view of the Commissioner as being the final court of fact is normally sacrosanct for this court, more so in a petition under arts. 226/227 of the Constitution of India, though this court is not debarred from going into the questions of fact if its conscience is otherwise pricked. If the court finds that there is non-application of the mind or there is a perfunctory discharge of the duty of interpretation, then as a corrective the court can step in, point out the error and leave the mending process to the quasi-judicial authority whose order is under challenge before it. And, in proper cases, the court can undertake the process by itself and complete the mending in exercise of its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot allowed to occur. That precisely appears to be the reason as to why for the period commencing from April 1, 1958, to March 31, 1959, the petitioners did not return any income on the said trucks. Thus, it appears to me that these glaring facts escaped the notice of the Commissioner and with a little extra scrutiny, they could have easily been deciphered. That process in the peculiar circumstances of the case had now to be done at this court's end, all the more so when once the matter was remitted to him for reconsideration, and it would now be futile to send it back to him for the purpose. With regard to the finding by the Commissioner that the resolution was collusive, there seems to be no basis for such a deduction. No facts are forth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could visit the petitioners. I am conscious that the scope of total income under s. 4 of the Act is either accrual of income, or deemed accrual of the said income. I am also, cognizant, on the strength of CIT v. Shoorji Vallabhdas and Co. [1962] 46 ITR 144 (SC), that the substance of the matter, despite being accrual, is the income, and if income does not result at all, there cannot be a tax, even though in book-keeping, an entry is made about a hypothetical income which does not materialise. I am also aware on the strength of Kedarnath jute Mfg. Co. Ltd. v. CIT [1971] 82 ITR 363 (SC), that entries in the books of account, if mistakenly not made, would not take the tax outside the ambit of law, if it is otherwise due. All these principles ..... X X X X Extracts X X X X X X X X Extracts X X X X
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