TMI Blog2001 (4) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... 80. The return was processed under section 143(1)(a) determining the loss at Rs.50,71,95,468. The case was selected for scrutiny. Notices were issued under sections 142(1) and 143(2) of the Act and the assessee submitted all the details called for. The assessing authority passed an order adding back Rs.18,23,82,925 being the amount written off in respect of 1.2 crores of the Unit Trust of India units on the ground that while adopting the closing stock this factum had been taken note of and the assessee claimed twice over this amount which according to the authority is a case of double deduction claim. Similarly in the matter of adjustment of a sum of Rs.7,55,31,164 in respect of fictitious loss of interest on loan account as capital loss is again a double claim. The assessee being aggrieved by the adding back of these claims preferred an appeal to the Commissioner of Income-tax. The assessee was represented before the Commissioner and he also explained the case with regard to the double claim both in respect of writing off of the loss and with regard to the interest on loan and capital loss. The Commissioner being satisfied with the explanation offered by the assessee and in the li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court any question of law arising out of such order, and subject to the other provisions contained in this section and the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such application draw up a statement of the case and refer it to the High Court. Section 256(2) provides for an application being made in the event of the Tribunal refusing to state a case on the ground that no question of law arises within six months to the High Court and the High Court may if it is not satisfied with the correctness of the decision of the Appellate Tribunal, require the Appellate Tribunal to state the case and to refer it. From a reading of this provision it is clear to us that in so far as findings of fact are concerned, the Tribunal has the final say in the matter but that final say if it is in contravention of any provision of law, it can certainly be a question of law arising out of that order. Let us see as to whether in the case on hand, the Revenue has made out a case for reference. In the case on hand we are concerned only with regard to two items, namely, the loss on account of write off of 1.2 crores Unit Trust of India units and the dealing wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f business and should be allowed as trading loss. According to the assessing authority, the loan amount which is repayable to Videocon International Ltd., can at the most be treated as capital loss and not as trading loss. With this reasoning he added back the same. When the assessee filed an appeal before the Commissioner, the Commissioner by a detailed order set aside the adding back of these two items. According to him, the profits have been inflated due to adoption of a lower value per unit of the securities sold in working out the profit as per the trading account in securities compared to the actuals due to the manipulations and the peculiar method of reckoning of profit from transactions followed by the appellant. In so far as interest on loss of Rs.7,55,31,164 is concerned, the Commissioner holds, that a sum of Rs.7,55,31,164 stood erroneously credited to the income side of the trading account. He further notices that there is justification for holding that the profit was overstated by the amount of Rs.7.50 crores as sale consideration of shares which were not purchased. The appeal filed by the assessee was allowed. On a further appeal to the Tribunal, the Tribunal no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing limited we cannot interfere on a finding of fact unless the said finding is opposed to any provisions of law or a finding totally opposed to the material on record or a perverse finding coupled with legal error. Even readings of the questions of law framed would show that they are nothing but questions of fact and not questions of law. Hence, we refrain from interfering in the case on hand. The Supreme Court in the case of Thiru Arooran Sugars Ltd. v. CIT [1997] 227 ITR 432 had an occasion to consider the scope of section 256(2) of the Act, and ruled that the Tribunal is the final fact-finding authority. The High Court cannot go behind the facts found by the Tribunal; it was for the assessee to raise all questions of fact at the time of hearing of the appeal before the Tribunal. At the reference stage, no fresh investigation into facts was possible. Recently, the Supreme Court in the case of K. Ravindranathan Nair v. CIT [2001] 247 ITR 178 ruled as under: "It is the Tribunal which is the final, fact-finding authority. A decision of the Tribunal on the facts can be gone into by the High Court only if a question has been referred to it which says that the finding of the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be done at the departmental level and those of the cases where the decision is purely factual are totally weeded out and no attempt is made to use the High Court machinery as a virtual second appeal. If the guidelines are not heeded hereinafter, the High Court will be left with no option except to saddle the Department with exemplary costs in all those cases where there was no ground for filing a CP in the first instance. As far as the field of tax laws is concerned almost every facet of the law has been examined and decided by one or the other judicial forums. Where the principles involved are already covered by judgments, even if it be a point of law of some importance merely because the Department is unhappy with the outcome before the Tribunal it is no ground for the filing of a CP as no other view is possible. Again there are a large number of cases in which the conclusions arrived at are perfectly logical and are within the four corners of the law and yet, a CP is filed with the hope that another view may be possible. It is again well settled law that unless it is one of those very small category of cases where new ground is being broken, merely because some other view ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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