9911796707
TMI Blog1974 (12) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... h respect to branches of the petitioner firm, and Rs. 7,193 representing certain items of export nature. Although the above income was found by the Income-tax Officer as the income of the petitioner, yet it had filed a revised return showing its income as Rs. 1,68,331. It went up in appeal against the order of the Income-tax Officer before the Appellate Assistant Commissioner who reduced the total income by Rs. 67,232, vide order dated January 24, 1970. This total assessable income of the petitioner was computed by him as Rs. 1,91,765. He also imposed a penalty on it under section 271(1)(c) of the Income-tax Act, 1961 (hereinafter referred to as " the Act "), in the sum of Rs. 72,000. It went up in appeal before the Income-tax Appellate Tribunal which was partly accepted by it on July 28, 1971. It reduced the gross profits by another 2 per cent. Thus, the balance of the assessable income as found by the Tribunal came to Rs. 1,67,765. It also reduced the penalty to 40 per cent. It allowed certain consequential reliefs. The petitioner then made an application to the Tribunal to refer the case to the High Court to decide certain questions of law. The Tribunal dismissed the application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had not been produced, the assessee cannot be given any benefit of doubt. It has been found by the Tribunal that the loss of Uchanti bahi has been accepted by the Income-tax Officer as the assessments were not made under section 144 of the Act. It is contended by the learned counsel for the petitioner that the business, regarding which entires were made in Uchanti bahi, was a separate business. He states that though the partners in that business were the same but they had different shares in profit and loss than those what they had in the assessee-firm. The nature of business represented in the Uchanti bahi was of purchase and sale of agricultural implements and whereas that of the petitioner-firm was of manufacturing of agricultural implements. The learned counsel further argues that the point was raised by the assessee's counsel before the Income-tax Officer and he dealt with it. He further argues that when its counsel raised the aforesaid question before the Tribunal it did not allow him to do so on the ground that it was an additional ground which had not been raised before the income-tax authorities. In the circumstances, he argues that the Tribunal had misdirected itself in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rried on by the same partners but with a different profit-sharing ratio. But the Tribunal did not permit the assessee to raise this factual contention for the first time before the Tribunal, more so because, in its very nature, it entailed detailed examination of the facts which could not be permitted at the second appeal stage." We have already mentioned that the matter was raised before the Income-tax Officer and was dealt with by him. In our view, the conclusions of the Tribunal are not rationally possible. In G. Venkataswami Naidu and Co. v. Commissioner of Income-tax, their Lordships of the Supreme Court held that in certain circumstances the conclusions of fact recorded by the Tribunal can be challenged under section 66(1) of the Indian Income-tax Act, 1922. The said section is in pari materia with section 256(1) of the Act. The relevant observations are as follows : " In some cases, the point sought to be raised on reference may turn out to be a pure question of fact ; and if that be so, the finding of fact recorded by the Tribunal must be regarded as conclusive in proceedings under section 66(1). If, however, such a finding of fact is based on an inference drawn from pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated July 28, 1971, has observed as follows : " We need not elaborate upon it because the loss of the Uchanti bahi has been tacitly accepted by the Income-tax Officer and the assessments were not made under section 144. It is true that the loss of books has been accepted by the Income-tax Officer, but, on the other hand, it has meant a heavy load on the assessee inasmuch as his version of the transactions and profit-sharing cannot be accepted as being proved in the absence of the Uchanti bahi. Uchanti bahi is the primary document in the present case. If that is not available, we cannot see how the benefit of doubt can be given to the assessee when the same is not produced before as. We, therefore, see no reasons to depart from the finding of the Income-tax Officer and the Inpecting (sic) Assistant Commissioner, that the business which was reflected in the Uchanti bahi was a business done by the assessee firm itself. After all, it cannot be forgotten that the Uchanti bahi were recovered from the business premises of the assessee firm and the only presumption that could be drawn was that this business belonged to the assessee." The income-tax authorities took into considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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