TMI Blog1962 (3) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... 1554-55, a total income of ₹ 3,537-12-0 for the previous year ending on 31st March, 1954, was shown by the assessee, which did not maintain any accounts. When a notice under section 23(2) of the Act was issued to Babulal Nim, the karta of the Hindu undivided family, he produced the pass book of the account of the family with Ramchandra Sons, show, a local banker. On a scrutiny of the pass book, it was revealed that on 24th March, 1954, a cash deposits of ₹ 50,000 was made in the accounts of the family and on 3rd April, 1954, there was a withdrawal of ₹ 50,000. The Income-tax Officer, therefore, called upon the assessee to explain the source of this deposit. In reply, the assessee field a statement saying that the amount of ₹ 50,000 consisted partly of past saving and partly of a legacy left by Puranlal, an ancestor of the family, and that the deposit was made in the bank for the purpose of obtaining a solvency certificate which was needed for the purpose of his registration as a contractor with the Western Railway and the Madhya Bharat Public Works Department. The statement was repeated in the examination of Babulal Aim by the Income-tax Officer. Babulal a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal to the assessee, Babulal Nim, and the answers given by him was kept. It appears that before the Tribunal the assessee produced for the first time a copy of an entry in the banker's ledger-book indicating that ₹ 50,000 had been advanced by Ramchandra Sons, bankers, to the assessee on 24th March, 1954 as a loan carrying interest at the rate of one per cent. Per month on the basis of a promissory note, and that the said amount was repaid by a cash deposit of ₹ 50,000 on 3rd April, 1954. This entry did not give any indication as to whether the interest charged on ₹ 50,000 was ever paid by the assessee and if so, when. The Tribunal found the assessee's explanation satisfactory and accordingly selected the amount of ₹ 50,000 from the profits of the assessee. Thereafter, the Commissioner of Income-tax moved the Tribunal to state the case to this court and refer the following question : Whether the Tribunal was justified in relying on the affidavit of the assessee without giving the Income-tax Officer an opportunity to rebut the evidence ? While rejecting this application, the Tribunal said that the Commissioner had raised a peculia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l one and the same. It was rejected by the Income-tax Officer and the Appellate Assistant Commissioner but accepted by the Tribunal. But here there was a voice face on the part of the assessee when the matter came up before the Tribunal and he offered an explanation which had not been even remotely suggested before the Income-tax officer or the Appellate Assistant Commissioner the assessee, while admitting that an amount of ₹ 50,000 was deposited on 24th March, 1954, and withdrawn on 3rd April, 1954, gave the explanation that the amount formed past savings. It was in the course of the argument before the Tribunal that the assessee for the first time came out with the statement that there was no deposit or withdrawal of ₹ 50,000 on the above dates and the entries made by the bank in the pass book were mere paper entries just to enable him to obtain a solvency certificate. In the first paragraph of the order passed by the Tribunal on 1st April, 9159, disposing of the assessee's second appeal, it has been observed : The M. E. S. required the assessee to produce a solvency certificate. The assessee arranged with his bankers (R. S. Ramchandra and Sons) to show a sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the Tribunal during the course of the hearing of the appeal was altogether a new one and was sought to be supported on material which had not been produced before the income-tax officer or the Appellate Assistant Commissioner. It is no doubt in the discretion of the Appellate Tribunal to receive and admit additional evidence in an appeal before it. But the power strictly limited by rule 29 of the Appellate Tribunal Rules, 1946. That rule provides that : The parties to the appeal shall not be entitled to produce additional evidence either oral or documentary before the Tribunal, but if the Tribunal requires any document to be produced or any witness to be examined or any affidavit to be filed to enable it to pass order or for any other substantial cause, or if the Income-tax Office has decided the case without giving a sufficient opportunity the assessee to adduce evidence either on points specified by his or not specified by him the Tribunal may allow such document to be produced or witness to be examined or affidavit to be filed or may allow such evidence to be adduced. It is clear from this rule that the admissibility of additional evidence under this rule depen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at happened was that the assessee urged before the Tribunal for the first time that in fact no deposit of ₹ 50,000 was made on 24th March, 1954, and there was no withdrawal of that amount on 3rd April, 1954 and the credit and debit entries in the pass book were made by the bankers just to oblige him to obtain a solvency certificate. The Tribunal then questioned the assessee and directed him to file an affidavit. It is interesting to note that in the reply which the assessee filed opposing the department's application under section 66(1) (page 27 of the paper-book), the assessee has said that when during the hearing of the appeal the Tribunal questioned him about the statement given by him before the Income-tax Officer, he replied that that it had been obtained under duress and threat and influence and was not voluntary and, therefore, the Tribunal examined him at length and asked him to file an affidavit which he did. It is thus clear that the Tribunal allowed the assessee to raise a new point and make out an altogether new case and directed him to file an affidavit to support it. It was within the assessee's knowledge whether or not a deposit of ₹ 50,000 was in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out of this money advanced by the bankers. In its order dated the 1st April, 1959, the Tribunal has observed : We agree with the departmental representative that the whole mischief has been caused by the assessee not coming forward with the correct explanation at the original stage. It is not known what the departmental representative actually said. But we are unable to regard the above statement in the Tribunal's order as incorporating am admission on behalf of the department that the assessee had a right to make out a new case before the Tribunal or that the new explanation given by him about the credit entry was satisfactory and should be accepted. If any such admission had been made the department would not have moved the tribunal under section 66 (I) and the Tribunal should have made some reference to this admission while rejecting the application under section 66(I). For all these reasons, our answers to the questions referred are that there is no evidence to support the finding of the Tribunal that the sum of ₹ 50,000 was not credited in cash by the assessee on 24th March, 1954, with Ramchandra and Sons, the bankers, and that the affidavit which th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
