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TMI Blog2003 (4) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... the case, the Tribunal was correct in holding that income from running the physiotherapy centre did not represent the income of Smt. Shobha Srivastava but was the income of the assessee? 5. Whether, on the facts and circumstances of the case, the Tribunal came to a correct conclusion that income from the physiotherapy centre could be derived only by a professionally qualified physiotherapist? 6. Whether, on the facts and circumstances of the case, the Tribunal was correct in holding that the income from operation of the x-ray machine did not belong to Shri Sanjay Srivastava but was the income of the assessee? 7. Whether, on the facts and circumstances of the case, the Tribunal was correct in holding that income from the operation of x-ray machine could belong to a qualified doctor only? 8. Whether the Tribunal was legally correct in holding that the operation of x-ray machine, the physiotherapy centre and the nursing home were carried on under the control and supervision of the assessee? 9. Whether, on the facts and circumstances of the case, the Tribunal had any material to give directions for the computation of income of the assessee by including income earned by the wife, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Income-tax (Appeals) deleted, vide his order dated April 21, 1988, inclusion of income of father, wife and his son in the hands of the assessee. He come to the conclusion that the assessee was a whole-time employee of the Government and he left very little time to look after several activities like running of nursing home, physiotherapy centre and x-ray clinic. He also noted that the father had engaged two whole-time doctors who were paid regularly for this purpose. The assessee was paid operation charges only. The operations were done only by professional doctors. He further came to the finding that the investment in the nursing home was made by the father out of his personal resources which was received by him when he retired from the Government service. He relied upon the books of account, cash books, ledger maintained by them. He also took note of the fact that the hiring charges of the rooms and the account with the bank was also in the name of the father of the assessee. He considered many documents seized at the time of search and observed that the wife had some experience in physiotherapy work though she was not professionally qualified but had engaged a technical perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt of fact whose decision on a question of fact is final, arrives at the decision by considering material which is irrelevant to the inquiry, or, by considering material which is partly relevant and partly irrelevant, or bases its decision partly on conjectures, surmises and suspicions, and partly on evidence, then in such a situation clearly an issue of law arises and the finding recorded on irrelevant consideration cannot be upheld under law. The other questions in regard to running of physiotherapy centre, x-ray machine and income from rental from beds were related with each other. The assessee had given evidence and such evidence was relied upon by the Commissioner of Income-tax (Appeals) and unless those evidence are considered in the light that it can be owned by the father, the son and the wife, though they are not professionals, the findings cannot be sustained. It is made dear that we have not expressed our final opinion in regard to any finding which is to be recorded by the Tribunal afresh keeping in view the observation made above. Our answer to question No. 2 is that the Tribunal was not correct in holding that the nursing home can be run only by qualified doctors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e son in his hands by merely allowing hire charges and expenses relating to various assets and equipments?" Many of the questions referred to above relate to the question of fact but a finding can be challenged when it is based on irrelevant consideration or material evidence has been ignored or there is misreading of any material evidence. In this respect questions Nos. 2, 3, 4 and 6 require consideration. The assessee in the relevant assessment years was a reader in the Orthopaedic Department of S. N. Medical College, Agra. He was carrying on his practice as Orthopaedic Surgeon at Agra. He was assessed up to the assessment year 1982-83 on the salary as a reader as well as from his profession as surgeon. The Department carried out search operation at his residence on September 6, 1985. The statements of the assessee, his wife, smt. Shobha Srivastava, and his father, Bhagwan Prasad, were recorded and certain documents were also seized though no assets or money was seized by the, search party. A nursing home was being run for the patients of the assessee and the assessment of its income was made in the hands of the father of the assessee, Shri Bhagwan Prasad, for the assessment ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doctor for this purpose. She had made certain investment in the physiotherapy centre by sale of jewellery. In regard to x-ray clinic he found that the son had purchased these machines from his mother. The Department preferred an appeal before the Tribunal and the Tribunal took the view that the wife, father and son of the assessee were not professionals and, therefore, they could not own and manage the nursing home and the income derived from them should be treated as the income of the assessee. An application was filed for making reference against the order of the Tribunal to this court. The Tribunal has referred the above noted questions. We have heard Sri V.B. Upadhyaya, learned senior counsel appearing on behalf of the assessee, and Sri A.N. Mahajan, learned counsel appearing on behalf of the Department. The questions, which have been referred to above, relate to the correctness of the finding on the ground that the Tribunal has taken into account irrelevant consideration and ignored certain material evidence on the record and that vitiated its finding. Question No. 2 is whether, on the facts and circumstances of the case, the Tribunal was correct in law in, holding that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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