TMI Blog1966 (5) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... this court referring the following four questions for our opinion: " (1) Whether there is any material to justify the inference that the income from managing agency commission and allowance from Mewar Textile Mills Ltd., Bhilwara, was the income of the Hindu undivided family and not that of Seth Sobhagmal Lodha ? (2) Whether, on the facts and in the circumstances of the case, a previous year different from the Diwali year could be adopted in respect of the income from the managing agency commission and allowance subject to tax on (a) ' accrual basis ' and (b) ' receipt basis ' ? (3) Whether the amount said to have been received in British India in the previous year could be treated as income accruing or arising without British India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome of the Hindu undivided family which accrued or arose outside the taxable territories and which were brought later or received into the taxable territories during the months of May and June, 1943. Out of these amounts, a sum of Rs. 2,39,070 received as commission and salary for the year 1942 was claimed by Sobhagmal Lodha to be his individual income and not income of the Hindu undivided family of which he was the karta. This claim was rejected by the Income-tax Appellate Tribunal and the income was held to belong to the Hindu undivided family. The plea of the assessee that these two sums were not brought into or received in the taxable territories was also rejected and they were subjected to tax. In accordance with the finding of the Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion and salary income have been assessed on the basis of the previous year being the calendar year. It was never disputed by the assessee that, for all other sources of income, except commission and salary, the previous year of the assessee was the Diwali year. The assessee only disputed the right of the income-tax department to treat the calendar year as the previous year for the income from commission and salary. It was urged by learned counsel for the assessee before us that the income from commission and salary should be treated as income from the same source from which the assessee was earning other income in respect of which the previous year was the Diwali year, because all the income was from the source of business. The argument i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e application of the assessee. In the present case, while there is the finding that in earlier years this income from commission and salary was assessed on the basis of the calendar year being the previous year, there is not even a suggestion that any application was ever made by the assessee for changing that previous year. Consequently, question No. 2 is also answered in the affirmative and against the assessee. So far as the third question is concerned, it only relates to two amounts, viz. the sum of Rs. 2,39,070 received as commission and salary for the year 1942 and the sum of Rs. 2,48,341 received as income from dividends on the shares of the textile mills. The question asked is whether these two sums, which were received in British ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount, being commission and salary for the calendar year 1943, had accrued to the assessee on the 31st December, 1943. The same principle will apply to the determination of the accrual of this sum of Rs. 2, 39,070 and as such it must be held to have accrued or arisen in the calendar year 1942. Consequently, the first part of the question relating to this amount of Rs. 2, 39,070 has to be answered by saying that this sum received in British India in the previous year relevant to the assessment year 1944-45 accrued or arose to the assessee outside British India not in the same previous year but in the earlier previous year which was the calendar year 1942. Both these amounts, Rs. 2, 39,070 and Rs. 2, 48,341, have been held to have been broug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounts have been taxed on the basis that they were brought into or received by the assessee at Ajmer within the taxable territory of British India. The question whether they were actually brought or not brought to Ajmer within British India was a question of fact. The judgment of the Appellate Tribunal shows that the Tribunal relied on the following facts and circumstances to record this finding of fact. [His Lordship referred to the facts and continued:] These six facts which we have enumerated above having been found by the Income-tax Appellate Tribunal, we consider that there was material before the Tribunal for recording a finding that these two items of Rs. 2, 48,341 and Rs. 2, 39,070 were brought into British India or received by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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