TMI Blog1972 (4) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... 922. It is a consolidated reference relating to assessment years 1940-41 to 1946-47. The question No. 1 relates to the assessment year 1940-41 alone. The question No. 2 relates to all the assessment years while question No. 3 relates to assessment years 1940-41 to 1944-45. The questions are : "1.Whether, in the circumstances of the case, the Tribunal was competent to direct the Income-tax Officer to calculate the amount of interest again and to pass a fresh assessment order so as to disallow out of interest a sum in excess of Rs. 30,000, when the assessee appealed against the disallowance of Rs. 30,000 ? 2. Whether, in the circumstances of the case, the Tribunal was right in including in the taxable income of the assessee the sum of Rs. 15,000, due as rent from M/s. J. N. Cocolas Co. Ltd. when the assessee's case was that in respect of that source of income it followed the cash system of accounting and not the mercantile system which it followed in respect of its business income? 3. Whether, in the circumstances of the case, the Tribunal was right in including in the assessable income of the assessee a sum of Rs. 2,181, as the assessee's share of income in another firm of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t open to the Tribunal to give a finding adverse to the assessee, which does not arise from any question raised in the appeal nor is it open to it to raise any ground which would work adversely to the appellant and pass an order which makes his position worse than it was under the order appealed against. The Madras High Court in V. Ramaswamy lyengar v. Commissioner of Income-tax has held that in such cases the Tribunal cannot exercise the power of remand with a view to enhancing the assessment. In Puranmal Radhakishan and Co. v. Commissioner of Income-tax the Bombay High Court has taken a similar view. In that case the assessee had claimed a loss on the sale of certain shares on the basis of the difference between cost price and sale price of the shares. The Income-tax Officer and the Appellate Assistant Commissioner held that the assessee was entitled to claim loss on the basis of the difference between the market price on the date of purchase and the sale price. The market price was determined at Rs. 715, per share. The Income-tax Appellate Tribunal on appeal by the assessee gave a finding that the market price was at Rs. 524-6-0. The Bombay High Court held that the Tribunal ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court was not dealing in that case with the question which we are called upon to decide in the present case. Now, in the instant case, the subject-matter of appeal was the sum of Rs. 30,000 which had been disallowed by the Income-tax Officer and the Appellate Assistant Commissioner of Income-tax. The assessee was aggrieved and filed a second appeal before the Income-tax Appellate Tribunal. There was no cross-objection or cross-appeal by the department that the disallowance should have been more than Rs. 30,000. In these circumstances the Tribunal if it found that the disallowance should have been more than Rs. 30,000, could only confirm the findings of the income-tax authorities and dismiss the assessee's appeal on that ground but it had no jurisdiction to pass an order either directly or indirectly to place the assessee in a worse position by disallowing a sum of Rs. 36,000 in place of Rs. 30,000. Now, coming to the next question, the facts are that the assessee had leased out one of its factory premises to one Messrs. J. N. Cocolas and Company Ltd. for an annual lease rent of Rs. 15,000. The assessee claimed that it was not able to realise the least rent in the years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name and style of gopal and Company. This firm had the selling agency of the Laxmi Ratan Cotton Mills. Among the partners of Gopal and Company were two persons, by the names of Dilsukh Rai and Sitaram. The Income-tax Officer held that those two persons were dummy partners and were benamidars of the assessee-firm so that the income falling to their share was included in the income of the assessee. In other words, the Income-tax Officer included in the assessee's income a sum of Rs. 2,181 for the assessment year 1940-41 and varying amounts for other assessment years. The assessee appealed on this point first to, the Apellate Assistant Commissioner of Income-tax and then to the Income-tax Appellate Tribunal, but remained unsuccessful. The assessee's contention is that it was not a partner in the firm of Gopal and Company. Its name was not in the partnership deed. The finding that Dilsukh Rai and Sitaram were benamidars of the assessee was recorded in the assessment proceedings of Gopal and Company of which the assessee was given no notice. The Appellate Assistant Commissioner of Income-tax held that although the assessee's name did not appear in the partnership deed, yet in the circum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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