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TMI Blog2010 (12) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... with a branch at Calcutta. The said partnership firm was dissolved w.e.f. 1st April 1982. As per the dissolution deed, the assessee took over the business of the Calcutta branch of the erstwhile firm. Thereafter, from 21st October, 1982, the assessee started a proprietary concern by the name of M/s Des Raj Vijay Kumar. 3. On 27th May, 1983, a search took place at the assessee's premises during which certain incriminating documents were recovered and seized. During the course of assessment proceedings for the assessment year 1983-1984, for which the previous year ended on 31st March 1983, the assessing officer examined the seized record. One of the registers so examined, revealed cash receipts of Rs.3,49,991/- in the name of 15 persons, most of which were purportedly received during the period of April, 1982 to October, 1982. When the assessing officer sought an explanation from the assessee with regard to the said cash credits in the register, the assessee merely stated that the cash receipts were in the nature of realisations from the past debtors of the erstwhile firm. In order to appreciate the said stand, the assessing officer called for the account books of the Calcutta bran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... although taking the view that the onus on the facts and circumstances of the case squarely lies on the assessee, hold that the material has to be re- considered in light of the afore-said observations....." 7. Pursuant thereto, on 17th May, 1995, the assessing officer asked the assessee to file confirmations of the 15 parties, in whose names cash credit entries appeared in the register seized during the search. In his reply dated 22nd May, 1995, the assessee stated that the said cash receipts were realisations of the sales effected in the earlier years by the erstwhile firm. Subsequently, the assessee was given three more opportunities on 2nd June 1995, 16th June, 1995, and 3rd July, 1995 to produce fresh evidence, which were not availed of by him. Vide letter dated 28th July, 1995, the assessee was given a final opportunity to file confirmations of the 15 parties, with their complete addresses. In his reply, the assessee filed the confirmations of 7 parties, with the address of 6 other parties. The assessing officer considered the two remaining parties as non-existent. It is pertinent to note that all the seven confirmations filed by the assessee were identical, and did not conta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee moved an application under Section 254(2) of the Act before the Tribunal for rectification of mistakes in the order of the Tribunal dated 23rd October, 2000. It was pleaded that the Tribunal had erred in observing that the assessee's premises were raided due to heavy sales, and that cash amounting to Rs.3,49,991/- was seized; that the assessing officer had issued ITNS 150, which the assessee had filed before the Commissioner (Appeals); and that the Tribunal did not take into consideration the arguments and various judgments relied on by the assessee. Vide order dated 25th September, 2001, the Tribunal rejected the rectification petition on the ground that:- (i) the Tribunal had relied on the assessing officer's order in relation to the factual position, and there was no reason to interfere with the same; (ii) while it was true that cash amounting to Rs.3,49,991/- was not recovered, but the said amount was entered in the register which was recovered; and therefore, this would not affect the findings of the Tribunal; (iii) the remarks in relation to ITNS 150 were not made by the Tribunal, but by the department's representative and (iv) re-considering the judgments relied on, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .......... ............................................................................ (7) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section." 18. It is manifest from a bare reading of the Section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression "substantial question of law" is not defined in the Act. Nevertheless, it has acquired a definite connotation through various judicial pronouncements. In Sir Chunilal V. Mehta and Sons, Ltd. vs. Century Spinning and Manufacturing Co. Ltd.( AIR 1962 SC 1314), a Constitution Bench of this Court, while explaining the import of the said expression, observed that: "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding." 21. A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread. (See: Madan Lal vs. Mst. Gopi and Anr. ((1980) 4 SCC 255); Narendra Gopal Vidyarthi vs. Rajat Vidyarthi ((2009) 3 SCC 287); Commissioner of Customs (Preventive) vs. Vijay Dasharath Patel ((2007) 4 SCC 118); Metroark Ltd. vs. Commissioner of Central Excise, Calcutta ((2004) 12 SCC 505); West Bengal Electricity Regulatory Commission vs. CESC Ltd. ((2002) 8 SCC 715)) 22. Examined on the touch-stone of the afore-noted legal principles, we are of the opinion that in the instant case th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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