9911796707
TMI Blog1956 (8) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... rises on this reference is with regard to the date when the business ceased to be carried on by the assessee firm. The first question really is a question of fact and if there is evidence to justify the finding, then no further question can arise. In the statement of the case the Tribunal in paragraphs 8 and 9 has set out various circumstances which support the finding that the business came to an end on the 28th August, 1945. It is unnecessary to recapitulate these circumstances, but it cannot be disputed that these circumstances do and can support the finding arrived at by the Tribunal. But what is urged by Mr. Mehta is that there is a particular circumstance which is inconsistent with this finding and therefore the finding must be set a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch had to be incurred in order to earn those profits. There fore, there is no circumstance or fact on the record which is inconsistent with the finding given by the Tribunal. But even assuming there was, we are not for a moment prepared to accept Mr. Mehta's contention that although there may be evidence and materials to justify a finding arrived at by the Tribunal, because there may be one fact or one circumstance which may be inconsistent with that finding, therefore, it would be open to this Court to interfere with that finding and come to a contrary conclusion. If this proposition were to be accepted, it would really result in this Court appreciating evidence and constituting itself a Court of fact. It is only a Court of fact that c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ictory of it." In our opinion, this expression is merely a paraphrase of what the Supreme Court stated earlier, viz., that there is no evidence, and when it says that the finding is inconsistent with the evidence, it means inconsistent with the whole body of evidence or contradictory of it. That means there must be no evidence at all consistent with the finding of fact. If there is any evidence consistent with the finding of fact, then it cannot be said that the finding is inconsistent with the evidence. In this case there is a volume of evidence which is consistent with the finding. Assuming some evidence is inconsistent with the finding, even so it could not be said that the finding of fact was not justified. The second contention i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt which has been sold or discarded or demolished or destroyed, the amount by which the written down value thereof exceeds the amount for which the building, machinery or plant, as the case may be, is actually sold or its scrap value, and "such machinery" in view of the earlier sub-clauses is clearly machinery etc. used for the purpose of business. Therefore, in order to entitle an assessee to avail himself of this deduction, all that the law requires is that there must be machinery which must be used for the purpose of the business in the year of account and that machinery must be sold and it must constitute a loss on the basis of accounting laid down in that sub-section. The machinery has admittedly been sold, admittedly there h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion claimed under section 10(2)(vii) and if that deduction is permissible according to the clear language used by the Legislature, then it is unnecessary to consider, with respect, what the view of the Supreme Court is with regard to the second proviso which deals with an entirely different question, viz., the question of notional profits which are made liable to tax under the second proviso to section 10(2)(vii). The Advocate-General has also attempted to persuade us that the year of account should have been from the nth January, 1945, to the 28th August, 1945, when the business was closed, and according to him if that was the year of account, then this particular deduction could not be claimed as the sale of the machinery fell outside t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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