TMI Blog1990 (3) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... his is a petition under article 136 of the Constitution for leave to appeal against the orders of the Tribunal and the High Court. The High Court, vide its order dated January 31, 1989, had dismissed the application for reference. There is also an order of the Tribunal refusing to make a reference under section 256(1) of the Income-tax Act, 1961 (hereinafter called "the Act"). This petition also seeks leave to appeal directly from the said order of the Tribunal. However, in order to appreciate the controversy in this case, the facts reiterated by the High Court of Kerala in its said judgment and order are important. It had observed as follows : "For the assessment year 1969-70, the petitioner filed a return declaring a total income of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal. The rectifications sought to be made are : (1) business loss to the tune of Rs. 20,00,000 incurred by the asses see due to investment in gold and the confiscation of the gold by the Customs authorities be allowed for the assessment year 1969-70, in view of the decision of the Supreme Court in CIT v. Piara Singh, decided on May 8, 1980, and reported in [1980] 124 ITR 40; (2) the income-tax and special surcharge amounting to Rs. 16,19,395 and Rs. 20,00,000 ; and (3) as the tax has already been collected from the amount of Rs. 20,00,000, no interest was payable." The High Court noted that the Tribunal could not accede to the requests of the petitioner as these could not be considered as mistakes apparent from the record. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 256(1) and the other of the High Court directing the Tribunal to refer the questions and state the case to the High Court, the petitioner has come up to this court. We find that it can legitimately be argued, in the facts and the circumstances of the case, that the question which essentially arose which had to be borne in mind and which was argued before the Tribunal was whether the sum of Rs. 20 lakhs could be subject to taxation in the context as found by the Tribunal as the income of the assessee. The assessee's further contention was that, in view of the decision of this court in CIT v. Piara Singh [1980] 124 ITR 40, even if Rs. 20 lakhs could be treated as the income of the assessee inasmuch as this has been ordered to be confiscated, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Zoraster and Co. v. CIT [1960] 40 ITR 552, and we agree with it. As the question on which the parties were at issue, which was referred to the court under section 66(1), and decided by it under section 66(5) is whether the sum of Rs. 9,26,532 is liable to be included in the taxable income of the respondents, the ground on which the respondents contested their liability before the High Court was one which was within the scope of the question, and the High Court rightly entertained it. It is argued for the appellant that this view would have the effect of doing away with limitations which the Legislature has advisedly imposed on the right of a litigant to require references under section 66(1), as the question might be framed in such gener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich has no application, may even misconceive the question to be decided, or ignore a statutory provision which expressly applies to the facts found. These are only illustrative cases : analogous cases may easily be multiplied. It would indeed be perpetrating gross injustice in such cases to restrict the assessee or the Commissioner to the questions which have been raised and argued before the Tribunal and to refuse to take cognisance of questions which arise out of, the order of the Tribunal, but which were not argued, because they could not (in the absence of any indication as to what the Tribunal was going to decide) be argued." As mentioned hereinbefore, this is an application for leave to appeal from the decisions of the Tribunal and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n alternative. It may be reiterated that the Central Excise Officers at Valayar check post seized gold weighing 16,000 gms. from car No. MYX 9432, which was being driven by the petitioner along with the documents and took the petitioner into custody. The Collector of Central Excise, Madras, had confiscated the gold in question and found that the petitioner was in possession of the gold. The assessment of the petitioner for the year in question was originally completed at a total income of Rs. 1,571. Subsequent to the completion of the original assessment, the petitioner filed a return declaring total income of Rs. 9,571. The Income-tax Officer issued notice under section 148 of the Act. The Tribunal ultimately had accepted the Revenue's ..... X X X X Extracts X X X X X X X X Extracts X X X X
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