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TMI Blog1978 (4) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... 30, a meher of Rs. 10,000 had been fixed. But, in February or March of the year 1960, in consultation with his legal advisers, he enhanced the meher to Rs. 1,00,000 and on April 1, 1960, he is supposed to have verbally transferred the property in question to his wife to discharge his meher, and mutation was effected in her name accordingly. The ITO did not accept the claim of the assessee. In his view, the transfer was a gift and not a transfer for consideration. In appeal, the AAC affirmed the conclusion reached by the ITO. On further appeal, the Income-tax Appellate Tribunal, Bombay Bench 'A', came to the conclusion that the transfer was genuine as well as valid. In its view, it was open to the assessee to increase the meher, fixed at the time of marriage, on a subsequent date. It further held that the evidence on record established the enhancement pleaded by the assessee as well as the plea of transfer put forward by him. It also came to the conclusion that ever since the transfer, the wife of the assessee was in possession of the property transferred to her name. Hence, the income of that property could not be considered as the income of the assessee. It will be noticed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able property worth a lakh of rupees in lieu of a dower debt of rupees one lakh. Such a transaction is a Hiba-bil-iwaz and requires a registered document : Mahabir Prasad v. Mustafa Husssin, AIR 1937 PC 174, and Zaina Bi v. Jamalkhan, ILR [1949] Nag 426. In the absence of any such document, the intended transfer was ineffective and the title to the property still resided in the assessee. That being so, no question can arise of invoking s. 16(3) of the Act and the income from the property continues to be, as before the intended and ineffective transfer, includible in the assessee's income. " Feeling aggrieved, the assessee went up in appeal before the Supreme Court. Their Lordships of the Supreme Court in Agha Abdul Jabbar Khan v. CIT [1971] 82 ITR 872, while allowing the appeal, observed that the course adopted by the High Court was not permissible, stating : " In our opinion, the High Court had no jurisdiction to raise new questions of law. The questions raised by it do not flow from the question referred to it for its opinion. The High Court's power under the Act is only to give its opinion on the questions of law referred to it by the Tribunal. It cannot take into considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 66(1) because, in the meanwhile, the Commissioner had moved an application under s. 66(1) of the Indian I.T. Act, 1922 (Miscellaneous Civil Case No. 668 of 1972--CIT v. Agha Abdul Jabbar Khan), referring to the High Court the following question for its opinion, namely : " Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the income from the property standing in the name of the assessee's wife could not be included in the assessable income of the assessee under section 16(3) of the Income-tax Act, 1922 ? " It will be noticed that the question now referred is substantially the same as the one originally referred under s. 66(1) of the Indian I.T. Act, 1922, which gave rise to this reference under s. 66(1) of the Act. In this connection, we may mention that in Misc. Civil Case No. 144 of 1973 (CIT v. Agha Abdul Jabbar Khan) the Commissioner has come forward with an application under s. 66(2) of the Act for requiring the Tribunal to refer the following two questions, namely : " 1. Whether, on the facts and circumstances of the case, there could be, in law, an oral transfer of the property in lieu of rupees one lakh due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n as to the validity of the transaction does not really arise, at least in the assessment year in question. The Appellate Tribunal has referred the self-same question, over again, to the High Court for its opinion. There are only two alternatives open, as indicated by their Lordships in CIT v. Indian Molasses Co. P. Ltd. [1970] 78 ITR 474 (SC) in these words : " Two courses are now open to us : to call for a supplementary statement of the case from the Tribunal ; or to decline to answer the question raised by the Tribunal and to leave the Tribunal to take appropriate steps to adjust its decision under section 66(5) in the light of the answer of this court. If we direct the Tribunal to submit a supplementary statement of the case, the Tribunal will according to the decisions of this court in New Jehangir Vakil Mills Ltd. v. Commissioner of Income-tax [1959] 37 ITR 11 [SC] Petlad Turkey Red Dye Works Co. Ltd. v. Commissioner of Income-tax [1963] 48 ITR 92 (SC) and Keshav Mills Co. v. Commissioner of Income-tax [1965] 56 ITR 365 be restricted to the evidence on the record and may not be entitled to take additional evidence. That may result in injustice. In the circumstances, we th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods covered by the pucca delivery orders. In these circumstances, their Lordships in Raghunath Prasad Poddar v. CIT [1973] 90 ITR 140 (SC) remanded the case to the Tribunal for rehearing the appeals, stating : " All that we can do is either to call for a supplementary statement from the Tribunal or to remand these cases to the Tribunal for a fresh hearing. As seen earlier, the authorities under the Act have completely misdirected themselves as to the questions of fact to be decided. Hence, there is need for a fresh enquiry. Therefore, it will be in the interest of the parties to remand the cases to the Tribunal for a fresh enquiry on the lines suggested earlier. We order accordingly. The Tribunal may take additional evidence on the questions mentioned earlier. The parties may be given reasonable opportunity to adduce additional evidence, both documentary as well as oral." We may also mention that a similar course was adopted in CIT v. George Henderson Co. Ltd. [1967] 66 ITR 622 (SC) and CIT v. Greaves Cotton Co. Ltd. [1968] 68 ITR 200 (SC). Their Lordships' decision in CIT v. Indian Molasses Co. Ltd. [1970] 78 ITR 474 (SC) and Ragunath Prasad Poddar v. CIT [1973] 90 IT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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