TMI Blog1998 (2) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... SHAH MOHAMMED QUADRI J.--- The Revenue is in appeal, by special leave, against the order of the Karnataka High Court (see [1983] 144 ITR 352), dated August 4, 1980, in I. T. R. C. No. 180 of 1975, answering the following question, referred to it under section 256(1) of the Income-tax Act, 1961, in the negative, that is, in favour of the assessee and against the Revenue : "Whether, on the facts and circumstances of the case, the Tribunal was justified in law in upholding the assessment of the sum of Rs. 32,58,500 as the income of the assessee for the assessment year 1960-61?" A brief narration of the facts leading to the reference of the said question to the High Court may be necessary to appreciate the contention urged before us. On De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate Assistant Commissioner who dismissed the same on December 16, 1972. The assessee's appeal before the Income-tax Appellate Tribunal was also dismissed on May 21, 1974. From that order of the Tribunal, the above said question arose. In the Tribunal, the Accountant Member and Judicial Member wrote separate orders but concurred on the dismissal of the appeal filed by the assessee. The Accountant Member agreed with the reasoning and conclusion of the Income-tax Officer and the Appellate Assistant Commissioner that the loan was not a bona fide transaction; the Judicial Member took the view that many of the circumstances relied upon by the Revenue were neutral and the others raised suspicion against the assessee but concurred in the concl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on on the question referred to the High Court. In answering the question, in this case, the High Court had to deal with various facts on record to determine whether the amount in question was loan or income. If such discussion of facts has led to arriving at the conclusion that the amount was a loan but not income, it cannot be urged that the High Court has disturbed the finding of fact recorded by the Tribunal. Here the Tribunal did not find any material to record a specific finding that the amount in question is in the nature of commission paid by Parsons and Whittemore to the assessee; it took note of the fact that the loan was advanced by agreement dated November 15, 1958, and that the Reserve Bank of India had accorded permission for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature of commission or a receipt of business. In arriving at the conclusion at which it did, it was necessary for the High Court to refer to the facts and discuss them to answer the mixed question of fact and law and that was what the High Court had done. The facts on record apparently indicate that the transaction was one of loan. The circumstances relied upon by the Revenue, namely, that the loan had been advanced without security, that the loan had not been repaid and no interest on the loan was paid by the assessee and that the agreement of loan was executed contemporaneously with two other agreements with regard to supply of machinery and construction of building for the paper mill cannot, without any further material, lead to the i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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