TMI Blog1995 (3) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... me from undisclosed sources and in reversing the order of the Appellate Assistant Commissioner ? " The assessee, following the mercantile system of accounting, was assessed in the status of an individual for the assessment year 1973-74. The assessment was completed under section 143(3) on March 31, 1976. It was found by the Income-tax Officer that the assessee had deposited Rs. 1,58,400 with the Bank of India, Netaji Subhash Road Branch, Calcutta, on April 5, 1972, at Calcutta, through the assessee's son, Dayaram. The Income-tax Officer observed that unless the person concerned had travelled by air to Calcutta, it was otherwise not possible to reach Calcutta on the 5th, the date of deposit. The Income-tax Officer then enquired about the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed February 20, 1976, and March 5, 1976, which have been ignored by the Income-tax Officer. It was also pointed out to the Appellate Assistant Commissioner that the assessee had actually withdrawn the money on April 3, 1972, and Dayaram had started by the 3rd evening from Tinsukia along with his friends by car reaching Calcutta on the 5th forenoon. This explanation was not considered at all by the Income-tax Officer. The Appellate Assistant Commissioner, on a consideration of all the facts and explanations as offered, came to the conclusion that the finding as recorded by the Income-tax Officer was not proper, and accepting the assessee's explanation, and referring to the Tribunal's decision (in I. T. A. No. 323/(Gau) of 1976-77, annexure " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Revenue, on the other hand, stoutly defending the Tribunal's order maintained that believing or disbelieving a particular fact does riot render a question referred a question of law, to determine and decide a question of facts and on the basis of facts found by the Tribunal, the question should be answered in the affirmative. Before proceeding to deal with the rival contentions it would be worthwhile to recapitulate the basic facts as found by the Tribunal. While it is true that the mode of travel from Tinsukia to Calcutta as initially disclosed was by air, so far as the assessee could remember, by letter dated March 5, 1976 (annexure " A-3 "), it was explained that Dayaram had travelled by car from Tinsukia to Calcutta with the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... havdas Kewalram v. CIT [1967] 66 ITR 462 (SC). Going through the order as passed by the Tribunal, it cannot be said that the Tribunal has taken into account the surrounding facts and dealt with the contentions advanced by the assessee. The Tribunal has noted in paragraph 10 of its judgment --- " The explanations of the assessee that the amount was withdrawn on the evening of April 3, 1972, but remitted only on April 4, 1972, due to late hours remains only an assertion and contention made on behalf of the assessee, but we find no fact or material to support this claim. " Earlier, the Tribunal has noted in paragraph 9 -- " Actually, it is for the assessee to prove and establish the correctness of a return of income filed by it, i.e., the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r way but that has not been done. Mr. Talukdar, learned standing counsel, has submitted that the assessee came out with two different versions as regards his mode of travel which naturally failed to inspire confidence. In this connection, it is to be borne in mind that it was years after the event that the assessee was called upon to explain a particular entry and he initially explained to the best of his memory so far as he could remember. Human memory is fading in these factors, and as already noted above, have to be taken into account which the Tribunal has omitted to consider and as pointed out in Addl. CIT v. Ghai Lime Stone Co. [1983] 144 ITR 140 (MP) section 68 of the Income-tax Act does not debar an assessee from offering an alter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kojani and Amarchand Jain, the date of journey has been wrongly taken both by the Income-tax Officer and the Tribunal, who on that count rejected the second explanation. The Tribunal has also confirmed this finding without adverting to the assessee's case that Dayaram started from Tinsukia on the 3rd. Mr. Talukdar, learned standing counsel for the Revenue, argued that the Tribunal, disbelieving the explanation of the assessee is essentially a question of fact, but even a finding of fact recorded by the Tribunal can be assailed on the ground that it is not supported by any evidence or that it is unreasonable or perverse (see CIT v. Deviprasad Khandelwal and Co. Ltd [1971] 81 ITR 460 (Bom)). The Kerala High Court in K. S. Kannan Kunhi v. C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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