TMI Blog1967 (11) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... or directed to be made over by the declarant's deceased husband Amritlal Ojha at Rajkot in April, 1944, some time before his death for the benefit of declarant and her 8 minor sons. " In a proceeding for reassessment of the income of Amritlal for the assessment year 1945-46, the attorney, who appeared on behalf of Anusuya Devi, stated that " Amritlal was from time to time, during the last 30 years of his life, giving gifts to his wife and also setting apart money exclusively for his wife and children and that the fund so accumulated which remained in a cupboard " was found after his death. The Income-tax Officer disbelieved the explanation furnished and brought the amount of Rs. 5,84,000 to tax as income of Amritlal in the year of account 1944-45 from an undisclosed source, and with his decision the Appellate Assistant Commissioner agreed. At the hearing of the appeal before the Income-tax Appellate Tribunal, Anusuya Devi, widow of Amritlal, filed an affidavit in which it was stated, inter alia : " 5. From time to time during our married life, late Sri Amritlal Ojha used to make presents of cash moneys to me on the occasion of birthday of myself and of my sons and daughter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Branch in the account of the declarant's major son--Bhupatray Ojha who drew a self cheque for Rs. 4,94,000, received payment by 494 pieces of 1,000 notes (included in the list) and made them over to the declarant... " The Tribunal rejected the application. The High Court of Judicature at Calcutta, however, directed the Income-tax Appellate Tribunal to state a case on the following question : " Whether the Tribunal erred in law by basing their decision on a part of the evidence ignoring the statement made as regards the withdrawal of Rs. 4,94,000 by 494 pieces of Rs. 1000 notes from the bank ? " In compliance with the order, the Tribunal observed that the extract from the statement incorporated in the petition under section 66(1) was materially different from the statement reproduced in the order of the Income-tax Officer and that the Tribunal was not invited to consider at the hearing of the appeal the truth or otherwise of the alleged copy of the declaration incorporated in the petition under section 66(1) and that at the hearing of the appeal the original declaration had not been produced. The learned judges of the High Court who heard the reference were apparently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the money stated to have been received and found in the cupboard was all in high denomination notes and the entire amount bad to be exchanged under the High Denomination Bank Notes (Demonetisation) Ordinance ". In the question which was referred under the direction of the High Court, it was assumed that the Tribunal had before it the statement about the receipt of 494 currency notes of Rs. 1,000 each from a bank at Calcutta in realization of a cheque. But that evidence was not before the Tribunal, and the order of the Tribunal was not open to the objection that it had decided the appeal before it on a partial review of the evidence. Even in the application made to the Tribunal under section 66(1) in the large number of questions which it was claimed arose out of the order of the Tribunal, it was not suggested that the finding of the Tribunal was vitiated because some relevant evidence was ignored. If the Tribunal refuses to state a case under sub-section (1) of section 66 on the ground that no question of law arises, and the High Court is not satisfied with the correctness of that decision, the High Court may, in exercise of the power under section 66(2), require the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the very basis of the question on which the Tribunal was called upon to submit a statement of the case did not exist. The Tribunal cannot in this case be charged with recording its decision without considering all the evidence on the record : the decision of the Tribunal was clearly based on appreciation of evidence on the record before it, and the High Court was, in our view, incompetent to direct the Tribunal to state the case on the question which was directed to be referred and dealt with by the High Court. We are also unable to agree with the observation of the High Court that the explanation which the Assistant Commissioner says was made by Anusuya Devi was not made by her or by her attorney. No such plea was apparently raised before the Tribunal. There is also no ground for believing that Anusuya Devi was not given an opportunity to " clear up the discrepancies " between the statements made by her or on her behalf from time to time in connection with the encashment of the high denomination notes. That plea was not raised before the Tribunal, and the validity of the conclusion of the Tribunal on appreciation of evidence cannot be assailed before the High Court on the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case this court may order a statement on that question. Counsel said that merely because on the findings of the Tribunal, Amritlal was on April 30, 1944, possessed of a large sum of money it could not be assumed that the whole amount was earned after April 1, 1944, and was on that account taxable in its entirety in the year of assessment, 1945-46. The question whether the amount of Rs. 5,84,000 was taxable in the proceeding for assessment for the year 1945-46 was considered by the Income-tax Officer and by the Appellate Assistant Commissioner. The Income-tax Officer observed that by the explanation submitted on behalf of Anusuya Devi before him, contrary to what was stated at the time of encashment of the high denomination notes, it was attempted "as an afterthought, to spread over the amount over a number of years." The contention that the amount of Rs. 5,84,000, was not taxable in the year of assessment 1945-46, was rejected. The Appellate Assistant Commissioner observed that on the statement made by Anusuya Devi that she had received the amount from her husband in the year of account, 1944-45, and that it was unfortunate that there was no complete record, of the " earnings ..... X X X X Extracts X X X X X X X X Extracts X X X X
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