TMI Blog1957 (1) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... d this been done the Income-tax Officer would have obtained substantial material to frame a proper assessment, and not relied upon surmises and presumptions unwarranted by the facts and circumstances of the case. As the record which was placed before the Assistant Commissioner could not enable the latter to make a proper assessment, he set aside the assessment, remanded the case to the Income-tax Officer and directed him to make a fresh assessment after examining the assessee's accounts and after making necessary enquiries on the lines indicated in his order. The Appellate Tribunal had no difficulty in endorsing the view taken by the Assistant Commissioner and dismissed the appeal by a short order, the concluding portion of which is in the following terms: It seems to us that the Appellate Assistant Commissioner's order is not open to any criticism. Indeed, he could not properly pass any order other than the one which he did in the circumstances of this case, The assessee's contention before us that the Appellate Assistant Commissioner ought to have made a re-assessment himself is hardly practicable. And we are unable to see anything in the Appellate Assist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to take and weigh evidence, to determine facts based upon the consideration of evidence and to make an order supported by findings. They have power to hear, to determine and to enforce. The powers exercised by them affect the personal and private rights of private individuals and their determinations are final and conclusive. They must proceed in a judicial spirit, conform to rules of natural justice and come to judicial conclusions upon properly ascertained facts (Harmukhrai Dulichand, In re [1929] I.L.R. 56 Cal. 39, 49, and Commissioner of Income-tax, Bombay v. Edulji Dinshaw I.L.R. [1943] Bom. 614, 622). Discretion conferred on a judicial or quasi-judicial Tribunal is an impartial legal discretion to be exercised in conformity with the spirit of the law and in a manner to subserve rather than to defeat substantial justice. It should be guided by law and inspired by a desire to promote justice. It should not be arbitrary, vague and fanciful and should not be ruled or governed by humour, unthinking folly or rash injustice. The very wide statutory discretion which has been conferred on the Appellate Tribunal for disposing of an appeal is a judicial discretion which must be exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich form the basis of the decision are not correct. Fourthly, the action of a Court which is invested with the exercise of discretionary power or authority while not altogether free from review in an Appellate Tribunal, is ordinarily not reviewable on appeal except to correct a clear and manifest abuse thereof. Now what exactly were the circumstances which impelled the Assistant Commissioner to set aside the order of assessment, to direct the Income-tax Officer to bring fresh facts on the record and to make a fresh assessment? Did he exceed the bounds of reason when he directed the Income-tax Officer to make a further investigation? The answer is furnished by the Assistant Commissioner himself. He found that the books of account maintained by the assessee were not balanced from day to day; that the cash books showed credit balances on at least two dates according to which disbursements exceeded the cash available; that this was a physical impossibility under any system of book-keeping; that the assessee's explanation that some cash might have been temporarily borrowed from some sister concern of the Kuthiala group at Srinagar would have to be more specific and would require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he pleadings filed in the trial Court are defective but can be made good by amendment and the appellate Court considers that they should be amended; when there is absence of necessary parties or misjoinder of parties; when an involved question of fact must be determined before judgment can be given; when a trial Court has omitted to record a specific finding upon a material issue of fact; when it has made findings which lack precision or which mix facts with inference, or when the findings are not sufficiently specific, or when the evidence which might have been material to the issues involved in the case was excluded. A case will not, however, be remanded, for further amended findings where the findings are direct, free from ambiguity, consistent, and fully responsive to the issues and contain nothing indicating that they are ill-founded in point of law. Mr. Sastri, who appears for the assessee, has not been able to displace the presumption of the validity and regularity of the proceedings taken by the Assistant Commissioner. He has not been able to show that the order from which the appeal was preferred to the Appellate Tribunal had resulted in a miscarriage of justice. He has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Lahore and it was contended that just as the powers of a civil Court are circumscribed by the provisions of law and just as a civil Court has no right to exercise those powers except in the circumstances mentioned in the provisions referred to above, similarly an Assistant Commissioner or an Appellate Tribunal cannot exercise unlimited powers or unfettered discretion in the matter of remands. This contention cannot merit serious consideration, first, because the Assistant Commissioner's powers to dispose of appeals under section 31 are wider than those of an appellate Court under the Code of Civil Procedure ; secondly, because the discretion exercised by the Assistant Commissioner was exercised in accordance with recognised judicial principles ; and thirdly, because the powers of remand conferred upon an Assistant Commissioner and an Appellate Tribunal are not limited by any restraining enactment. It seems to me therefore that these two authorities are at liberty to remand a case for further investigation. Ascertainment of facts is obviously a necessary prerequisite to the application of the law. The Assistant Commissioner in the present case has given clear and detailed r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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