TMI Blog1970 (11) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... closed income – therefore both questions are answered in affirmitive - - - - - Dated:- 18-11-1970 - Judge(s) : BAL RAJ TULI., D. K. MAHAJAN. JUDGMENT The Income-tax Appellate Tribunal, Delhi Bench "B", has referred the following two questions of law to this court for opinion at the instance of the Commissioner of Income-tax: "1. Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in entertaining the new contention raised on behalf of the assessee that past intangible additions made in the assessee's case explained the discrepancy in the capital figure ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that past intangible additions made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal to the Appellate Assistant Commissioner before whom it was contended that the Income-tax Officer ought to have passed an order under section 171(2) of the Income-tax Act, 1961, hereinafter called the Act, in regard to the assessee's claim of partial partition on March 31, 1964. Agreeing with this contention of the assessee, the Appellate Assistant Commissioner set aside the order of the Income-tax Officer and directed him to make a fresh assessment after making necessary enquiries under section 171(2) of the Act and after recording a finding regarding the partition of the family property and the date of partition. In pursuance of that, direction the Income-tax Officer passed an order under section 171 of the Act recognising a part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see's explanation that there had been a mistake in stating the amount of capital contributed by the Yamuna Nagar branch as Rs. 51,463.45 instead of Rs. 31,459.10 was an after-thought and that the discrepancy of Rs. 20,004.35 between the two figures had to be explained. At that stage the assessee raised a new contention before the Tribunal, that is, the difference between the capital at the Yamuna Nagar branch as per its books and the capital transferred to the head office at the time of the partial partition represented the intangible additions made to the assessee's income not only in the present assessment year but also in the earlier assessment years. The departmental representative objected to the admissibility of this new contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of the assessee should be taken into account in considering any unexplained investment. The same two contentions have been raised before us by the learned counsel for the petitioner. Reliance in support of the first contention is placed on a judgment of a Division Bench of the Bombay High Court (Tambe and Desai JJ.) in Commissioner of Income-tax v. Hazarimal Nagji Co. In that case during the assessment proceedings for the assessment year 1949-50, the Income-tax Officer found cash credits to the extent of Rs. 90,000 and, as the source of such credits was not explained, he added this amount to the assessee's income. The Appellate Assistant Commissioner reversed this order. The department appealed and when the Tribunal expressed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal.-The appellant shall not, except by leave of the Tribunal, urge or be heard in support of any ground not set forth in the memorandum of appeal, but the Tribunal, in deciding the appeal, shall not be confined to the grounds set forth in the memorandum of appeal or taken by leave of the Tribunal under this rule: Provided that the Tribunal shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of being heard on that ground." In the present case the departmental representative was given an opportunity of being heard on the new ground raised by the assessee and, thus, the requirement of that rule was satisfied. We are, therefore, of the opinion that the answer to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal to allow the assessee to raise the plea and substantiate it. There is no question of investigation on facts because the intangible additions made in that year or in the previous years were on the record of the Income-tax Officer and only a reference had to be made to the previous assessment orders. No new fact had to be investigated or proved. The two judgments of their Lordships of the Supreme Court in Kale Khan Mohammad Hanif v. Commissioner of Income-tax and Commissioner of Income-tax v. Devi Prasad Vishwanath Prasad, relied upon by the petitioner have no applicability to the facts of the present case. All that was held by their Lordships in those cases was that it was open to the Income-tax Officer to assess an amount as the incom ..... X X X X Extracts X X X X X X X X Extracts X X X X
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