9911796707
TMI Blog1981 (9) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on June 17, 1964. However, the enquiries by the ITO had revealed that (1) the firm had no means to lend such an amount to the assessee, (2) the firm was a mere " name-lender ", and (3) it helped various parties to introduce secreted income in the books of account in the form of " bogus loans". The ITO asked the assessee to explain the nature and source of the amount fully and truly, to produce necessary evidence or materials and also asked to produce the alleged creditor for examination on oath. While showing cause, the assessee took the stand that it was not bogus entry; it produced accounts and claimed that the amount of Rs. 49,000 was received from the lender by cheque No. 0547704 dated June 17, 1964, drawn on the Bank of India, Calcutta, and duly deposited in the assessee's account with the Mercantile Bank Ltd., Calcutta, on the same date. However, the assessee claimed that summons might be issued to the creditor and other witnesses and expressed that it would pay the necessary costs of the summons. The ITO held that the bank accounts merely reflected the receipt and the deposit of the amount which did not satisfy his mind that the transaction was a loan or that it was recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idyananda Surekha were never shown to the assessee. The counsel also relied on the documents filed by it and urged that they had established that the receipts and payments of the cheques were actually made by the creditor (M/s. Surekha jute Co.) to the assessee and by the assessee to the creditor. The entire thrust of the assessee before the Tribunal was to make out a case for fresh enquiry. The Tribunal upheld the contentions of the assessee that, (a) it was the duty of the ITO to place the statements of Shri Bidyananda Surekha before the assessee to enable it to take steps to rebut the statements appearing against it; (b) the ITO had violated the provision of s. 142(3) of the Act in not affording the assessee opportunity to produce evidence in support of its case, notwithstanding prayers therefor. The learned Tribunal held that the mere production of accounts by the assessee showing the receipt of the amount in cheque as well as payment of the amount by cheque, in the absence of verification by the ITO whether the receipt and payment cheques were actually made by the creditor (Surekha) to the assessee and repayment thereof by the assessee to the creditor, respectively, did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est Products (P.) Ltd. v. CIT [1977] 110 ITR 558 (Gau). The facts are similar and the name of the lender is the same and the statements of the proprietor of the firm are also in the same tune. In the instant case as well, the Tribunal has remanded the case on the same ground, namely, violation of the provisions of s. 142(3) of the Act, following the set principles in Assam Forest Products (P.) Ltd. [1977] 110 ITR 558 (Gau). It may be stated at this stage that in the instant case there is nothing to show that the assessee ever urged before the Tribunal that the ITO had no jurisdiction to call upon the assessee to explain the nature and source of the entries, as he had no material to act upon. Before we consider the contentions of the learned counsel for the assessee, let us cogitate on the object and purpose of the reference by the Tribunal. The crux of the question asked by the Tribunal is to ascertain the outer limit of its jurisdiction to remand a case. The focal point is the nature and limit of the Tribunal's jurisdiction to remand a case. The Tribunal is a high-powered appellate authority having judicial powers created by " the Act " composed of men having experience and expe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hasis added). It must form an opinion judiciously and thereafter it can exercise the power of remand. A detailed reason may not be given in the decision. The exact nature of the remand order to be passed in a given case is a matter within the absolute discretion of the Tribunal, but the power being judicial it must be exercised judiciously, according to rule and not according to humour ; the order must be legal and regular, disciplined as opposed to capricious. A capricious or impetuous order of remand is an abuse of the discretionary power conferred on the Tribunal. When such a discretionary order is made by a Tribunal, a high-powered authority, the presumption ought to be that it was a disciplined and responsible exercise of power. The grounds of such exercise of power may appear either from the order or the reasonings of the Tribunal in the decision rendered by it or in an appropriate case implicitly from the decision rendered by it in the background of the contentions raised before it. If the Tribunal decides to remand, taking a view of the case, but an alternative view or other views might exist for not remanding the case, in our opinion, the exercise of the power of the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the requisite opinion was the admitted case of the assessee before the Tribunal. It asked for furnishing the material and the Tribunal made necessary directions. Existence of some such statements of Bidyananda are before us in annex s. " C-2 ", " C-3 " and " D " apart from the admission of the assessee. As such the first contention has no force. The second contention does not bear any scrutiny. There is no legal bar to use such materials to form the requisite opinion by the ITO to call upon the assessee to explain cash credit entries in the books of account. Counsel for the assessee has failed to point out any provision of law that such materials are inadmissible or irrelevant. Nor could the counsel point out any particular type or class of material prescribed as admissible or relevant to call upon the assessee to explain cash credits under s. 68 of " the Act". The statements of Shri Bidyananda Surekha and the enquiry made were the foundations for forming the opinion by the ITO-they had nothing to do with the proof or otherwise of the genuineness of the entries. Such materials, in our opinion, are sufficient to form the requisite opinion by the ITO to put the onus on the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Tribunal in exercise of its judicial discretion has remanded the case to the AAC, for holding the enquiry and making a decision, which cannot be said to be violative of any known principle of law. Rather, it was in consonance with the principles enunciated in Assam Forest Products (P.) Ltd. [1977] 110 ITR 558 (Gauhati). The order of remand for enquiry was what the assessee had asked for. It is a full-scale enquiry after furnishing the statements of Shri Bidyananda Surekha and in the fitness of things the Tribunal, instead of holding the enquiry, remitted the case to the I.T. authorities. It is not a case of mere proof of a document or examination of a witness which might have been made by the Tribunal. We are unable to hold that the Tribunal has abused its power in remanding the case to the appropriate authority. We find no force in this contention. Having disposed of the contentions of the assessee let us scrutinise the decision of, the Tribunal. Upon scrutiny of the decision we arrive at the conclusion that the sole object behind the order of remand was to give the appropriate reliefs asked for by the assessee. The Tribunal found that the assessee was deprived of the oppo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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