TMI Blog1953 (9) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... rch, 1946. In pursuance to those directions the Income-tax Officer and the Excess Profits Tax Officer have made re-assessments for the relevent years. Under Section 8(5) of the Act the assessee filed applications for a reference to the High Court on certain questions of law, and the Commissioner of Income-tax has referred to us one question. He has also set out in the statement of the case various questions which the assessee required him to refer to the High Court and the Commissioner has given reasons why he has not referred these questions. A notice of motion has been taken out by the applicant to compel the Income-tax Commissioner to refer these questions to us. With regard to the question that arises on the reference itself, the question is: Whether the Commission which had power to investigate and report in a case referred to them by the Central Government had any jurisdiction to estimate the income of the assessee to ascertain the loss of revenue. This question is covered by a decision of this Court in A.A. Ansari v. Commissioner of Income-tax, Bombay City (1953) 23 ITR 260, and Mr. Kolah has fairly conceded that the decision covers the question raised. In view of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the procedure, and sub-section (1) provides: The Commission shall, subject to the provisions of this Act, have power to regulate its own procedure...and may act notwithstanding a vacancy in the number of the Commissioners; and the powers of the Commission under sub-sections (1), (2), (3), (7) and (8) of Section 6 and sub-sections (2), (4) and (6) of this section may be exercised by any member thereof authorised by the Commission in this behalf. Therefore, under Section 7(1) it is competent to the Commission | to delegate any of the powers mentioned in that sub-section to one or more members of the Commission. In other words, in respect of the matters referred to in Section 7(1) the Commission need not sit as a whole, but one member of the Commission, if he is so authorised by the Commission itself, may discharge the duties and functions of the Commission. Section 8(1) is important from this point of view. That sub-section provides: Save as otherwise provided in this Act, the materials brought on record shall be considered by all the three members of the Commission sitting together, and the report of the Commission shall be in accordance with the opinion of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture provided an exception in Section 7(1) of the Act. Mr. Kolah has relied on a decision of the Supreme Court in In re All-India Industrial Tribunal (1951) SCR 380; 53 Bom. LR 958. In our opinion that decision, with respect, does not lay down any new principle. The principle it lays down is the principle which we have just enunciated. In that case the Supreme Court was considering the award made by the All-India Industrial Tribunal (Bank Disputes), and what was contended before the Supreme Court was that the award was bad inasmuch as the tribunal had not functioned as a whole throughout the various [stages of the inquiry, and in the judgment it is pointed out that under the Industrial Disputes Act a board of conciliation, a court of inquiry and a tribunal are set up, and whereas in the case of a board of conciliation and the court of inquiry it is expressly provided that a board or the court of inquiry having the prescribed quorum may act notwithstanding the absence of the chairman or any of its members or any vacancy in its member, such a provision is absent when we turn to the constitution of the tribunal under Section 7, and it is also pointed out that the only exception tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 6 of the Taxation on Income (Investigation Commission) Act. It is pointed out by Mr. Kolah that when this order was issued Mr. Justice Rajadhyaksha was a member of the Commission. Mr. Justice Rajadhyaksha subsequently resigned and Mr. Justice Chatterjee, Chief Justice of Calcutta, was appointed in his place, and Mr. Kolah says that there is no subsequent authorisation when the Commission was newly constituted by the Substitution of Mr. Justice Chatterjee for Mr. Justice Rajadhyaksha, and it is also pointed out that delegation under this order is in respect of only some of the powers referred to under Section 7(1) of the Act. Now, it is an error to look upon order No. 10 as conclusive of the matter. This order is set out in the affidavit as an illustration of how authorisations were made by the Commission. It does not follow that all authorisations were in writing or that the only authorisation which was effected by the Commission was the authorisation covered by order No. 10. Therefore, the presumption to which we have already made reference must have full sway and we must assume that whatever powers were exercised by members of the Commission individually were in the exercis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be open to the Commission at any stage to require the assessee to give an explanation with regard to the evidence adduced against him. A particular grievance is made with regard to a person by the name of Chimanlal Ramnarayan who was examined by the Commission, and it is pointed out that he was examined in the absence of the assessee. Now, although he was examined in the absence of the assessee, it is clear from the record that a copy of the statement of what this witness deposed to was furnished to the assessee and he was specifically given an opportunity of cross-examining Chimanlal if he so desired. It was for the assessee to avail himself of that opportunity or not. But it could not be said that Chimanlal's evidence was made use of behind the back of the assessee; and it appears from the affidavits that the assessee actually cross-examined Chimanlal. Therefore, if Chimanlal was interrogated under the power given to the Commission under Section 6(3), the assessee can have no grievance so long as what was elicited in the course of the investigation was not made use of without an opportunity being given to the assessee of being heard with regard to that statement. The next ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions of the Government of India of the 4th December, 1950, but when we turn to the assessment order it is perfectly clear that the assessment was made not under the ordinary law under Section 34, but under the directions issued by the Government Of India. Mr. Kolah says that when notice under Sebtion 34 was issued he had a right to adduce evidence and there was an obligation upon the Income-tax Officer to assess only after taking into consideration the evidence adduced by the assessee. Again, this contention is put forward under a misapprehension of the scheme of the Act. Once the Commission has made its report and given its findings under Section 8(4), the findings recorded by the Commission subject to the provisions of sub-sections (5) and (6) become final; and sub-section (5) deals with a reference to the High Court, and sub-section (6) deals with the power of the Commission to correct clerical or arithmetical mistakes. Therefore, subject to those provisions it was not open to the Income-tax Officer or the Excess Profits Tax Officer to go behind the findings of the Commission. The assessment under Section 34 is mace pursuant to the directions of the Government and for the purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 8(5) refers to a question of law it does not mean that any question of law, however frivolous, however insupportable, however inarguable, must be referred by the Commissioner because the assessee suggests that such a question law arises. If the Court finds that the question of law answers itself or that it is patently inarguable, there is no reason why the time of the Commissioner or of the Court should be wasted in asking the Commissioner to refer to us questions of law. Ingenuity of lawyers will always suggest questions of law arising out of the findings of, the Commission. It is only when the Court is satisfied that a question of law arises and that it requires consideration by the Court that the Court would direct the Commissioner to raise a question of law. In that strictly technical sense Mr, Kolah may be right that the questions he has argued before us are questions of law. But on a careful consideration of the points Mr. Kolah has urged before us, we have come to the conclusion that there is no substance whatever in the questions of law and no useful purpose will be served by our asking the Commissioner to refer these questions to us. The result is that the notice ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
