TMI Blog1990 (11) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... rials and independent evidence and also unjustified ?" The respondent is a registered firm., We are concerned with the assessment year 1979-80 for which the accounting period ended on March 31, 1979. The assessee-firm was doing the business of running arrack shops in Piravam Excise Range. The shop numbers were 1 to 5. For the assessment year 1979-80, it returned an income of Rs. 68,690. The Incometax Officer noticed certain defects in the accounts. He took up the total sales up to May 21, 1978. The arrack purchased during the period was only 12,260 litres. The sale proceeds amounted to Rs. 3,72,553. It disclosed an average price of Rs. 30.38 per litre. But the average sale price per litre admitted by the assessee for the entire year was Rs. 23.50 per litre. The Income-tax Officer picked up another date, i.e., January 8, 1979. The total quantity of liquor purchased up to January 8, 1979 was only 17,420 litres. As per the average selling rate disclosed by the assessee, it should have sold 79,175 litres. This disclosed an excess quantity of liquor sold by 8,755 litres, as shown by the assessee itself. The Income-tax Officer proposed to adopt the average selling rate at Rs. 30 per li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied is also without foundation. He referred to two comparable cases furnished by the assessee which showed the selling rate varying from Rs. 28 to Rs. 30 per litre. Since there was a difference of Rs. 3 in the admitted rates in the two comparative cases, he held that it will be fair if an average selling rate of Rs. 27 is adopted. Thus, the addition was limited or reduced to Rs. 3.5 lakhs. The order passed by the Commissioner of Income-tax is dated July 30, 1983. The assessee as also the Revenue filed appeals before the Tribunal. Both of them were considered together and a common order dated August 24, 1984 was passed by the Tribunal. In paragraph 5 of the judgment, after narrating the gist of the orders rendered by the Income-tax Officer and the Commissioner of Income-tax and after noticing the rival pleas put forward by the assessee and also by the Revenue, the Tribunal adjudicated the matter thus : "We have considered the rival submissions and perused the papers filed. Except for the bald assertion by the managing partner in his affidavit that the assessee had an opening stock of 3,600 litres of arrack as on April 1, 1978, the assessee could not produce any evidence before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bitrarily and at the ipse dixit of the Tribunal. Counsel for the assessee submitted that the Tribunal, as the final appellate fact-finding tribunal, had ample jurisdiction to alter the basis and quantum of the estimate or taxable income fixed by the authorities below and it cannot be stated that the Tribunal had no jurisdiction to fix a lower estimate of income. The determination of the taxable income by the Tribunal is largely a finding of fact and this court in answering the reference will not ordinarily interfere with the said finding of fact. Counsel for the assessee submitted that the Tribunal determined or fixed the income of the assessee at Rs. 1,41,000 by placing reliance on a comparable case and it cannot be stated to be either illegal or unjustified. It is true that the powers of the Tribunal are stated in the widest terms in section 254 of the Income-tax Act. The powers vested in the Tribunal are similar to the powers of an appellate court functioning under the Code of Civil Procedure. The frontiers or the limits are specified in the section itself. It is true that as a final fact-finding authority, it is open to the Tribunal to unravel the entire facts and circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal is the final fact-finding authority. It is an appellate forum on facts as well as law. In exercising the appellate power, the Tribunal is rehearing the case. Wide as these appellate powers are, the limitation is implicit in the exercise of that power. At the hearing of the appeal, it is for the appellant to show that the decision appealed against is wrong it will not be sufficient for the appellant to urge or plead that contrary conclusion is possible on the basis of materials and circumstances disclosed in the case. The burden is on the appellant to prove that the decision appealed against is wrong. See Narbada Prasad v. Chhaganlal, AIR 1969 SC 395, 399, paragraph 10; Mt. Fakrunisa v. Moulvi Izarus Sadik, AIR 1921 PC 55, 56 ; Richard Thorold Grant v. Australian Knitting Mills Ltd., AIR 1936 PC 34, 39 and Kunju Pakiam v. Krishnan Nadar [1963] KLT 362. R. N. Misra J. in Keluni Dei v. Kanhei Sahu, AIR 1972 Orissa 28, 31, paragraph 19, stated the law pithily, thus : "It is incumbent upon the final court of fact particularly in the case of a reversing decision-this is an instance of reversal as all the material findings were being reversed to meet the reasonings of the trial ..... X X X X Extracts X X X X X X X X Extracts X X X X
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