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TMI Blog2002 (4) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of some information to the effect that for acquiring the business premises on rent, the assessee-firm had paid certain amount by way of "pagri". As recorded in paragraph 5 of the draft assessment order, the premises occupied by the assessee were previously in possession of Mansukh Stores. Pursuant to the report made by Shri R.J. Vyas, Inspector of Income-tax, which revealed that certain amount was received by the landlord from the assessee, the Income-tax Officer issued summons under section 131 to the landlord, Shri Haresh jadavji Parekh, and recorded his statement on March 26, 1984, as noted in paragraph 5 of the assessment order. The report of Shri R.J. Vyas was placed on record. We are emphasising this aspect because earlier at no point of time till the Tribunal has decided the matter was it ever urged that the copy of the report of Mr. Vyas was not given to the assessee. However, even that report will pale into insignificance because of the fact that the authorities have not based their conclusions on that report but have relied upon the statement of one Bhupatrai C. Doshi who was a partner in Mansukh Stores along with his wife Vidyaben who had vacated the premises after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment order in the matter. Accordingly, the Income-tax Officer made the assessment order on September 20, 1984, adding the amount of Rs.1,40,000 in the income of the assessee as the amount paid by way of "pagri" which did not find place in the books of account of the assessee. As discussed in paragraph 9 of his order, the Income-tax Officer finding that the version of Shri Doshi about having received the amount of Rs.1,20,000, out of which Rs.20,000 was received by way of cheque from the assessee was reliable, came to the conclusion that the said amount was includible in the total income of the assessee being the amount paid out of the books from the income from undisclosed sources. The Commissioner of Income-tax (Appeals) considered this item in paragraphs 4 and 5 of his order dated March 21, 1984, in the appeal which was preferred by the assessee and deleted the same by observing that the evidence of Bhupatrai C. Doshi was only hearsay and the actual tenant Smt. Vidyaben B. Doshi has denied having received any "pagri" in her affidavit filed before the Inspecting Assistant Commissioner. The Revenue appealed against the order of the Commissioner of Income-tax (Appeals) bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statements and confronted the assessee with those documents and papers. (b) The decision of the Supreme Court in CIT v. Smt. P.K. Noorjahan [1999] 237 ITR 570, was cited for the proposition that the intention of Parliament for enacting section 69 of the said Act was to confer a discretion on the Income-tax Officer in the matter of treating the source of investment which has not been satisfactorily explained by the assessee as the income of the assessee, and the Income-tax Officer was not obliged to treat such source of investment as income in every case where the explanation offered by the assessee is found to be not satisfactory. It was held that the question whether the source of investment should be treated as income or not under section 69 of the Act has to be considered in the light of the facts of each case. (c) The decision of the Supreme Court in Sona Builders v. Union of India [2001] 251 ITR 197, was cited to point out that in a case where no copy of the document of sale instance was furnished along with the notice or at any time whatever, it was held that there was a gross breach of the principles of natural justice, because, adequate opportunity to meet the case made o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e income in question could not be treated as undisclosed income of the assessee used in investment, was never raised before any authority including the Tribunal and the said question does not arise from the order of the Tribunal and since the said question does not arise from the order of the Tribunal, this court cannot go into it. In support of his contention, learned standing counsel relied upon the following decisions: (a) The decision of the Supreme Court in C. Vasantlal and Co. v. CIT [1962] 45 ITR 206, was cited for the proposition that it was open to the Income-tax Officer to collect materials to facilitate assessment even by private enquiry. But if he desires to use the material so collected, the assessee must be informed of the material and must be given an adequate opportunity of explaining it. (b) The decision of the Supreme Court in CIT v. Smt. Anusuya Devi [1968] 68 ITR 750, was cited for the well settled proposition that the High Court could decline to answer a question of law which does not arise out of the order of the Tribunal. It was held that the High Court was not bound to advise the Tribunal on a question which did not arise out of the order of the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee as held by the Tribunal. The Tribunal also took note of the fact that the shop in question was situated in one of the busiest localities in the city of Rajkot and the assessee had obtained the possession of the shop on payment of the amounts admitted by Mr. Doshi. The Tribunal observed that the landlord in his statement had admitted that the earlier tenant was in possession since 25 to 30 years on a monthly rent of only Rs.25 and, therefore, there was nothing unusual in the said payment having been given to the outgoing tenant. The Tribunal held that the material on record inspired full confidence for reaching the conclusion that the amount in question was paid by way of "pagri". Mr. Doshi has stated that he was told by his wife Vidyaben that the amount of Rs.1,20,000 was paid by the assessee. There could not be more authentic evidence forthcoming than the evidence of the husband who would be having knowledge of the fact of Vidyaben having received Rs.1,20,000 from the assessee for vacating the shop premises occupied by their firm for 25 to 30 years. The affidavit of Vidyaben which is belatedly produced by the assessee before the Inspecting Assistant Commissioner of Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act of 1922 (the provisions corresponded to section 256(1) and (2) of the Act of 1961). It was held that it is of the essence of such a jurisdiction that the court can decide only question which are referred to it and not any other questions. When a question of law is neither raised before the Tribunal nor considered by it, it would not be a question arising out of its order. It was held that all that section 66(1) required was that the question of law which was referred to the court for decision and which the court is to decide must be the question which was in issue before the Tribunal. We do not find it necessary to dilate on the point any further and hold that it is not open for the assessee to raise this contention for the first time before this court since it does not arise from the order of the Tribunal. In the above view of the matter, we hold that the Tribunal had not committed any error while confirming the addition of Rs.1,40,000 as the income of the assessee as was ordered by the Income-tax Officer and the question referred to us is answered against the assessee and in favour of the Revenue. The reference stands disposed of accordingly with no order as to costs. X X X X Extracts X X X X X X X X Extracts X X X X
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