9911796707
TMI Blog1973 (5) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... a letter to the assessee on 10th November, 1960, and which contained statements, inter alia, as follows : " Please adduce evidence to prove conclusively the claim for loss in the hessian trading account at Rs. 2,71,920 ; it has to be proved that actual deliveries were taken and given in those transactions. It may also be proved that these transactions are not of a speculative nature. " The reply of the assessee is dated 29th November, 1960, which contained, inter alia, the following statement : " That in explaining how the loss of Rs. 2,71,920 was suffered, your petitioner begs to state that the loss arose from transactions where actual delivery was taken and given and full price was paid or received. There was no ultimate settlement but 'ultimate delivery'. In business in jute goods the delivery of P.D.Os. & Mates receipts are treated as actual delivery. In this case there is not a single item where the contract was settled and difference paid or received. In support of the contention your petitioner herewith produces the books of account contracts, purchase bills, own bill counterparts and three letters from M/s. Lakmidas Vithaldas, Harkishore Kejriwal & Co. and Gourishankar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntrary to the decision taken by the Tribunal for the assessment year 1954-55 and overrule the previous decision. The short question is whether the delivery of the pucca delivery order constituted the actual delivery or whether dealing in pucca delivery order constituted a speculative transaction. The previous decision of the Tribunal was that it constituted a genuine transaction while the later decisions were of the view that it was speculative in nature. It is the knowledge of the fact that subsequently the Tribunal had held the aforesaid view about the effect of the delivery of the pucca delivery order that led the Income-tax Officer to reopen the assessment. The question involved before the Tribunal was whether such a knowledge or instruction could be information in terms of section 34(1)(b) of the Indian Income-tax Act, 1922. The Tribunal was of the opinion that such a knowledge on the same set of facts and on the same controversy which was present before the Income-tax Officer at the time of original assessment was merely a change of opinion and did not constitute an information in terms of the section. Thereafter the Tribunal has referred the aforesaid question to this court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been allowed. Thereupon, the Income-tax Officer started reassessment proceedings in respect of the years 1949-50 to 1952-53 in order to assess the amounts allowed as business expenditure. It was held by the Division Bench of the Bombay High Court that the observations made in the order of the Tribunal relating to the assessment years 1949-50 to 1952-53 did not amount to information in the possession of the Income-tax Officer and did not entitle him to reopen the assessment for these years. It was observed that a mere change of opinion on the part of the Tribunal regarding the admissibility of certain amounts as business expenditure would not constitute information within the meaning of section 34(1)(b) of the Indian Income-tax Act, 1922. Counsel for the assessee further contended that the aforesaid decision had been referred to by the Supreme Court in several cases and had been distinguished on facts. He, for instance, drew our attention to the decision of the Supreme Court in the case of R. B. Bansilal Abirchand Firm v. Commissioner of Income-tax. At page 79 of the report the decision of the Bombay High Court had been considered by the Supreme Court. The Supreme Court was of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B. Bansilal Abirchand Firm v. Commissioner of Income-tax. In that case when the first assessment of the assessee's income was made by the Income-tax Officer the latter's information was that the assessee was a partner in another concern known as Bisesar House and that the interest had been received from that concern in the capacity of a partner. It was only after the Tribunal and the High Court had given their decision in the proceedings of the assessment of Bisesar House that the Income-tax Officer came to know that the interest was not being received by the assessee-firm in the capacity of a partner but in the capacity of a financier advancing moneys to the Bisesar House as a banker. It was held by the Supreme Court that the Income-tax Officer had not acted on his own initiative or on the change of his own opinion when he took proceedings under section 34(1)(b). The correct position had been brought to his notice by the decision of the Tribunal and the High Court. In the case of Commissioner of Income-tax v. Gurbux Rai Harbux Rai at page 91 of the judgment after reviewing the previous decisions the Supreme Court observed that the Supreme Court had consistently held that the Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
