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TMI Blog1977 (8) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... e limited to winding up the affairs of the Rangoon branch." Though the directors stated in the aforesaid report that the " company did not trade in Burma during 1963 and operations were limited to winding up the affairs of the Rangoon branch ", the company nevertheless claimed in the assessment proceedings that the loss sustained by it in Burma was an allowable deduction. Therefore, the ITO, in his letter dated September 24, 1964, to the company wrote as follows: " The company appears to have suspended its activities in Burma from 1-1-1963, vide the report of the directors to the shareholders at page 4. If this is the correct position then the expenses claimed under business in respect of the Rangoon branch will not be allowable as no trading operations were carried on during the year. It is, therefore, proposed to disallow the loss computed in the Rangoon branch and ignore also the profits under the head 'Business'. You are requested to furnish your views on this point. " The company replied by its letter dated October 29, 1964, as follows : " While, broadly speaking, it is correct to say that the company did not trade in Burma during 1963 and operations there were limited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble. He also held that the stocks held by the company at the close of the earlier accounting year were taken over by the Govt. of Burma and that there were no purchases or charges relating to trading except those relating to opening stocks. He also stated as follows : " It has been contended that an establishment was maintained in Rangoon to finalise the outstanding affairs pertaining to the business and that ' unless the remittance of the profits of the foreign branch has been effected, the trading will not be complete and such remittance can take place only after all outstanding matters including accounting, taxation, etc., have been settled'....... No evidence has been produced to prove the existence of any trading activity during this accounting year. The references to certain activities made by the company all relate to the winding up of the branch....... All available evidence indicates the non-existence of any business. The sale of stocks, plant and machinery, by the Rangoon office was not an operation in furtherance of the business carried on by the company but was a realisation of its assets in the process of gradual winding up of its business. Hence, the loss claimed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en acquired by the Government to justify its conclusion that there was no question of the assessee carrying on any business in the relevant year? (b) Whether the finding of the Tribunal that the assessee did not carry on any business in Burma in the concerned year is sustainable in law as it was arrived at by the Tribunal without taking into account all relevant evidence relied upon by the assessee ? " Mr. K. Ray, learned advocate for the company, rightly admits before us that question (b) has not been properly framed, for it presupposes that the Tribunal has not " taken into account all relevant evidence relied upon by the assessee ". Therefore, in the context of his argument, we reframe it as follows : " (b) Whether any relevant evidence relied upon by the assessee before the Tribunal was ignored by it in arriving at its conclusion that the assessee did not carry on any business in the accounting year and, if so, whether the said finding is not sustainable in law?" Mr. Ray argues as follows: (i) The expression " marketing assets " used in the directors' report means the assets by which the products are ordinarily sent to market for sale, e.g., the petrol tank and packag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produce to be sold in the market ; also, a consignment of such produce ". This meaning gives a quietus to his aforesaid meaning of the words " marketing assets ". It also repels his contention that the stocks of the company were not taken over by the Govt. of Burma. The closing stocks of 1962 were the opening stocks of 1963. Therefore, we do not find any inconsistency between the findings of the ITO and the AAC in this behalf. That apart, the company did not even argue before the Tribunal that its stocks were not taken over by, the Govt. of Burma. No opinion on it has been expressed by the Tribunal. Accordingly, this pure question of fact does not arise out of the order of the Tribunal. Moreover, it was not the case of the company before the Tribunal that in view of the profit and loss account the findings of the ITO and the AAC relating to stocks were perverse and, therefore, their findings should not be accepted. There is also no such question before us. Furthermore, the aforesaid finding of the AAC is binding on the company. Mr. Ray is also not entitled to take this unmeritorious plea before us. . The AAC took into consideration the order of the ITO and also the directors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned the order of the Tribunal and those materials, we are unable to agree with learned counsel for the appellant, that the order of the Tribunal is vitiated by any of the defects adverted to in Dhirajlal Girdharilal v. Commissioner of Income-tax [1954] 26 ITR 736 (SC) or Omar Salay Mohamed Sait v. Commissioner of Income-tax [1959] 37 ITR 151 (SC). We must make it clear that we do not think that those decisions require that the order of the Tribunal must be examined sentence by sentence, through a microscope as it were, so as to discover a minor lapse here or an incautious opinion there to be used as a peg on which to hang an issue of law. In view of the arguments advanced before us it is perhaps necessary to add that in considering probabilities properly arising from the facts alleged or proved, the Tribunal does not indulge in conjectures, surmises or suspicions. " (Underlining is for emphasis). The Supreme Court also quoted its aforesaid observations in the case of Bhaichand Amoluk Co. v. CIT [1962] 44 ITR 511 (SC) at p. 516 of the report, to reject the contention that the finding of the Tribunal was based on no evidence or suspicions or conjectures or surmises. The Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X
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