TMI Blog1973 (7) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... AMASWAMY. JUDGMENT The judgment of the court was delivered by RAMANUJAM J.-The assessee in this case is a firm carrying on business in general goods in Ceylon. The firm consists of 2 partners, K. P. Sundaralingam Pillai and V. Patchimuthu Pillai. Sundaralingam Pillai was a permanent resident of Ceylon. Patchimuthu, though he stayed in Ceylon, used to visit India from time to time, as his family was staying in India. During the accounting year ending March 31, 1960, Patchimuthu Pillai stayed in India during the period April 1, 1959, to September 23, 1959, an during the accounting year ending March 31, 1961. during the period October 7, 1960, to January 28, 1961. The assessee-firm filed its return of income for the previous years end ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal. Before the Tribunal the assessee-firm produced the correspondence between the two partners to show that Patchimuthu Pillai was not consulted about the management and control of the business while he was in India, and that the entire control and management of the affairs of the assessee-firm was only in the hands of the other partner permanently residing in Ceylon. The Tribunal, however, felt that the assessee was not justified in not producing the correspondence before the assessing or the appellate authority and that, therefore, the same cannot be received as additional evidence at that stage. But the Tribunal had gone into the correspondence filed by the assessee and took the view that the correspondence was sufficient to pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts stated above, the question in dispute between the parties is as to whether the assessee-firm is "resident" as urged by the revenue or it is "non-resident" as urged by the assessee in the context of section 4A(b) of the Indian Income-tax Act, 1922. As we are of the view that the question referred to us does not properly indicate the issue involved, we are frame the question thus: "Whether there are materials before the Tribunal to hold that the assessee was a resident-firm within the meaning of section 4A(b) of the Indian Income-tax Act, 1922, for the assessment years 1960-61 and 1961-62?" The Income-tax Officer proceeded on the basis of the statement given by the assessee on November 19, 1963, before him. An affidavit was filed from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubt true that the Tribunal has got a discretion either to admit the documents as additional evidence or to reject the same at the stage of the appeal. But the said discretion cannot be exercised in an arbitrary manner. If the Tribunal finds that the documents filed are quite relevant for the purpose of deciding the issue before it, it would be well within its powers to admit the evidence, consider the same or remit the matter to the lower authorities for the purpose of finding out the genuineness of the letters and considering the relevancy of the same. But if the Tribunal finds that the evidence adduced at the stage of the appeal is not quite relevant or that it is not necessary for the proper disposal of the appeal before it, in that case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellate Assistant Commissioner with a direction to the assessee to produce the entire correspondence including the letters produced before the Tribunal and calling upon him to dispose of the matter afresh in the light of the entire correspondence that may be placed before it. As already stated, for deciding the only question that arises in the case, whether the assessee-firm is a resident-firm as contemplated in section 4A(b) of the Income-tax Act, the only material that was available before the Income-tax Officer was the statement given by Patchimuthu Pillai, one of the partners. The said statement was sought to be explained by an affidavit from him before the Appellate Assistant Commissioner. Except these, there are no other material ..... X X X X Extracts X X X X X X X X Extracts X X X X
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