TMI Blog2006 (8) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... this Reference for opinion of this Court in relation to Income Tax Appeals No. 2682, 2682 and 2684/Ahd/1990 on the following question; "Whether on the facts and in the circumstances of the case the tribunal was justified in holding that no valid trust came into existence on the basis of alleged deed dated. April 20, 1982/September 20, 1982 and the assessed income as computed by the ITC should be subject to tax at rates as applicable to A.O.P. Under the Act ?' 3. It is to be noted that Reference Application No. 1465/Ahd/1994, 1466/Ahd/1994 and Reference Application No. 1467/Ahd/1994 were made by the concerned assessee for referring various questions. Reference Applications were heard and ultimately in relation to 8 questions proposed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alatable to the assessee, was challenged at his instance before the Commissioner of Income-tax (Appeals). The Commissioner of Income-tax (Appeals) called for Remand Report from the Assessing Officer as per his order dated October 6, 1986. The Remand Report was received by the Commissioner of Income-tax (Appeals) vide Assessing Officer's letter dated January 20, 1990, the Report was against the interests of the assessee. The Commissioner of Income Tax (Appeals), after hearing the parties and not agreeing with the Remand Report, observed that there was an arithmatical/clerical mistake in mentioning the date of execution of the document as '20th April 1982' because in fact the document was executed on 20th September 1982'. He also observed tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e submissions. It is also the case of the assessee that the legal effect of purchase of the stamp in name of some one else and difference in place of execution/attestation, or difference in the signatures and execution of the document on a date prior to the date of the purchase of the stamps were in fact not argued. He submits that the Income Tax Appellate Tribunal was absolutely unjustified and from the frame of the question proposed by the assessee it would clearly appear that the assessee all throughout had been contending that he was condemned unheard. On the other hand, learned counsel for the Revenue submits that from a perusal of the order passed by the Income Tax Appellate Tribunal and Paragraph 7 of the Statement of the Case made b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Paragraph 7 onwards of the Statement of the Case. Paragraph 7 onwards, of the Statement of the Case, is verbatim reproduction of the order passed by the Income Tax Appellate Tribunal. If on two available opportunities such affidavit is not filed, then it will have to be presumed that the assessee was not aggrieved by or was not taking an exception to the record of the case. Under the circumstances, the Question No.1 proposed in Reference Application No. 1465/Ahd/1994 may come within the sweep of the final questions, but will have to be answered against the interests of the assessee. 8. The Assessing Officer, so also the Tribunal, to hold that the Trust Deed was sham and bogus and was ante-dated, have relied upon certain facts which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned counsel for the Revenue, on the other hand, submits that these circumstances would fall short to discharge the burden which was very heavy upon the assessee. According to him, the date of the document is 20th April 1982, but the stamp was purchased on 5th July 1982. He submits that if on comparison of the attending circumstances the Tribunal has recorded a finding then that would be a finding of fact and in any case this Court would not be entitled to reverse the findings unless the findings are perverse or such which could not be arrived at by a prudent person. 11. We have gone through the order passed by the Tribunal. We have also gone through the order passed by the learned Commissioner of Income Tax (Appeals). 12. The Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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