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TMI Blog1985 (12) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... ich he was signatory as a confirming party. The Tribunal noted, that since this ground would go to the root the matter and the point was canvassed before the Tribunal for the first time, the assessment was set aside for disposal by the WTO for determining the valuation of the interest of the assessee in the partnership firm in the light of the material brought before the Tribunal. 2. Accordingly the WTO took up the fresh assessment as directed by the Tribunal. Hearing was given to the assessee. The assessee contended that he had retired from the said firm on 31st Dec., 1969 and, therefore, the disclosed amount should left out of the assessment as the assessee was never a party to the disclosure made in November, 1965 particularly when it was stated in the disclosure petition categorically that amount disclosed was as a result of the activities of Late G. S. Atwal who though not a partner, was still the master mind behind the firm's business. It was also submitted that the firm's assessment order form the asst. yr. 1958-59 onward was completed after the disclosure was made and it was only with the consent given by Sri Surinder Singh Atwal that the disclosed amount was spread over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee cannot be accepted as in his view the assessee remained a partner of the other firm up to 31st Dec., 1960 which was the valuation date for the year under consideration and, therefore, r. 2 was applicable in determining the interest of the assessee in the firm and in the circumstances the WTO was justified in taking into account the concealed income of the firm and, therefore, the contention of the assessee was rejected. Hence this appeal before us. 6. The appeal by the assessee before the Tribunal is that the AAC erred in sustaining the order of assessment inspire of the fact that the assessee ceased to be a partner w.e.f. 31st Dec., 1960, in view of the specific clause of the partnership deed dt. 3rd March 1961 in which amongst other things it was stated that the business carried on by the old partnership upto 31st Dec., 1960 shall always be deemed to have taken over and continued by the new partnership with effect from the said date. It is also the appeal by the assessee that the AAC erred in ignoring materials brought on record by the assessee before the ITAT in WTA. Nos. 385 to 389 (Cal)/70-71 dt. 4th May 1972. The assessee has raised ground also that althoug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious points were noted which would indicate that the assessee had not received any amount out of the disclosed amount made above and, therefore, the recovery of tax would have to be made from Sri Surjit Singh Atwal. The assessee's ld. counsel submits that this development requires to be taken into account also by the Tribunal even at the stage especially when this revealation which confirmed the stand taken by the assessee all along which has been noted and noticed by the Departmental authorities. It is pointed out that such report could not be placed before the AAC who disposed of the appeal by the assessee earlier, i.e. on 29th June 1978 and, therefore, natural justice requires that this report may be taken into account by the Tribunal in disposing of the present appeal by the assessee. It is also pointed out that in earlier occasion, the ld. Departmental Representative objected tot he admission of this report as sought to be made out by the assessee on the ground that the assessee had not stated as to how he managed to obtain surreptitiously copies of correspondences of the Departmental officers which were classified papers. It is stated by the assessee's learned counsel that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment. It is urged that in such circumstances the Tribunal may not take into consideration the report of the IAC concerned on which the assessee's ld. counsel has placed much emphasis. 12. The assessee's ld. counsel, on the other hand, points, out that even if any document or evidence was procured by illegal means that would not by itself a bar to its admissibility relying on the decision of the Hon'ble Supreme Court of India in the case of Magraj Patodia AIR 1971 SC 1295 which was in connection with matters relating to election. 13. We have heard both the sides and have perused the orders of the authorities below as well as the order of the Tribunal mentioned earlier and as referred to by both the sides. We have also gone through the paper book and other papers placed before us for our consideration. It is seen that the assessee did raise certain basis points before the AAC on which the AAC has not given a finding or a decision, as made out in the grounds of appeal before us. That apart the assessee's case before us now is that the Departmental report which came into existence after the AAC has disposed of the appeal could not be placed before him then and, therefore, admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the value of the assessee's share in the interest of the firm aftef taking into account the terms of the partnership deed which was placed before the Tribunal for the first time then. Since in our view, the subject matter is the same, such Departmental report whether material or not and whether relevant or not may be taken into account for proper disposal of appeal and for giving substantive justice to the aggrieved party. In fact the Tribunal has the power and the obligation for that matter to consider any material so that it can pass such orders on any subject matter before it. 15. As indicated hereinbefore the contention of the assessee was that he had no interest in the firm's assets after he had ceased to be a partner thereof and according to the assessee's ld. counsel this stand is also supported by such Departmental appeal which admission is being objected to at this stage by the Revenue. In our opinion that report is relevant. 16. Having regard to the various aspects of the matter and the rival contentions of both the sides and keeping in view the decisions noted in the proceeding paragraphs we are of the opinion that if such report has been obtained surreptitiously t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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