TMI Blog1941 (4) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... o a notice served on him under Section 22(4). An examination of these account books showed that three sums aggregating ₹ 3,160 had been credited in the personal account of the assessee and the Income-tax Officer called upon the assessee to prove the nature of these deposits. The explanation given was that these sums represented capital brought from home . A further notice under Section 22 (4) was thereupon served on the assessee requiring the production of accounts of the cash kept at home from which these sums had been produced. The assessee did not produce the accounts and alleged that no such accounts were maintained. The Income-tax Officer disbelieved this, and holding that notice under Section 22(4) had not been complied with ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assistant Commissioner could find that there was no sufficient cause excusing the assessee from complying with the requirements of the law as prescribed by Section 27. The assessee's failure to comply with the requirements of the law consisted in the non-production of the accounts of the cash kept at home . The Commissioner was of opinion that the assessee must have kept some accounts. He said that it is not usual for business people of the assessee's class to keep large sums of money idle in the house, and that where large deposits are found credited to his personal account in the business it is not enough for him to say that the money was brought from home . The burden is on the assessee to prove by evidence the real source ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e think the contention is valid, that the question in (b) is not a question of law, but a question of fact, and therefore it cannot be considered in this application. It was said by the Rangoon High Court in V.P.R.P.L. Firm v. The Commissioner of Income-tax, Burma [1933] I.L.R. 11 Rang. 397; 1 I.T.R. 319, that in every case the question whether a particular sum is profits or capital is one of fact to be determined by the Income-tax authorities upon the materials before them. It was also said by the Allahabad High Court in Sheoduttrai Pannalal v. Commissioner of Income-tax, United Provinces [1940] 9 I.T.R. 118; A.I.R. 1940 All. 530, that the question whether an assessee had or had not sufficient cause within the meaning of Section 27 is o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich an inference could be drawn is a question of law. In that case there had been a reference by the Commissioner under Section 66(2), the point of law referred being whether there were any materials upon which the Assistant Commissioner could find that a head office set of accounts was in existence. In the present case the Commissioner observed that the only question of law that could arise is whether there were any materials upon which it could be found that there was no sufficient cause for not complying with the requirements of the law and he proceeded to say that there was ample material for holding that the assessee had other accounts than those produced and was not prevented by sufficient cause from producing them. The questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n cases of this kind the giving of positive evidence by the department about facts which are within the special knowledge of the opposite party is almost out of the question, and that materials which come within the description of circumstantial evidence or general probabilities which would justify a presumption under Section 114 of the Indian Evidence Act, are materials upon which the Court can come to a finding just as properly as it could upon positive evidence. In the present case the sums of money in question are shown as having been advanced by Sohan Lal, father of Chaturbhuj, and they are said to have been advanced out of capital kept by him. Sohan Lal has no Bank account; admittedly he has no sources of income other than the join ..... X X X X Extracts X X X X X X X X Extracts X X X X
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