TMI Blog1984 (7) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... o Rs. 80,374 to the assessee's income as income from other sources ? " The fact as found in the original reference under s. 256(2) of the Act may be briefly stated. The assessee is a partnership firm deriving income from business in biri leaves and tobacco. It has its head office at Jhajha and branches at Calcutta, Rehala, Muzaffarpur and Katihar. A sum of Rs. 1,05,000 plus interest of Rs. 3,201-total Rs. 10,8,201 was found credited in the books of the assessee for the assessment year 1968-69. The credits were in the names of eight parties, six of whom were stated to belong to Nepal and the other two to Purnia. All the deposits were stated to have been received in cash at Rehala Branch of the assessee in the month of May, 1967. Enquired about the nature and source, the assessee explained that these parties went to Rehala and paid the cash as advance for purchase of biri leaves but they took their money back later as the biri leaves offered for sale by the assessee were not to their satisfaction. Certificate of confirmation, alleged to be from these eight parties, were filed. The ITO found that all the certificates filed had a set pattern about the deposits and also the withdrawal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, the Tribunal upheld the addition of these credits and the interest thereon amounting in all to Rs. 80,354. Against this addition, the Tribunal, however, conceded the assessee's other plea that the intangible addition upheld in the biri leaves account/tobacco account be set off and directed that the balance alone should be brought to tax under s. 68. A copy of the order of the Appellate Tribunal is marked annexure-C to the statement of the case. Pursuant to the directions of this court, as already stated earlier, supplementary statement of the case has been submitted. On these facts, the learned counsel for the petitioner, Mr. Narayan Prasad Agarwal, has submitted that the Tribunal was not justified in sustaining the addition of Rs. 80,354 (wrongly printed or typed as Rs. 80,374 at places). Mr. B. P. Rajgarhia, learned senior standing counsel for the Revenue, raised a preliminary objection that the question as reframed by this court and referred by the Tribunal consequent thereupon did not arise from out of the Tribunal's appellate order and, therefore, could not be said to be question of law arising out of the order of the Tribunal. This court, therefore, had no jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly rejected as unsatisfactory." From the aforesaid paragraphs, it is clear that the Tribunal was quite alive to the situation and the question of law raised, both before the ITO as well as the AAC. The Tribunal was also aware that the assessee was all along pressing that its prayer under s. 131 of the Act was wrongly rejected and merely by rejecting the said prayer, the onus could not be said to have been discharged by the assessee. By not summoning the six parties concerned, as it had all along been contended on behalf of the assessee, the onus that lay on the Department was not discharged. Thus, it was an aspect of the question regarding the justifiability of the addition of Rs. 80 " 354 and was included in ground No. 11 taken before the Tribunal in the memorandum of appeal to the effect that the addition was not justified in law. It is too well settled now by the highest court of the land that if an aspect of a question is involved in the question as referred under s. 256 of the Act, then the same can said to arise from out of the order of the appellate Tribunal [CIT v. Scindia Steam Navigation Co. Ltd. [1961] 42 ITR 589 (SC) at 612]. In the aforementioned case, at page 661, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Delhi High Court, however, which was relied upon by Mr. Agarwal, learned counsel for the assessee, deserves attention here. The decision is reported in the case of CIT v. Blaze Advertising (Delhi) Pvt. Ltd. [1983] 143 ITR 421 (Delhi). A question that arose in that case was whether the basic point on which the ITO decided in the case could be said to have ceased to exist merely because the Tribunal did not mention it in its order. And on a reference under s. 256(2) of the Act, the Delhi High Court held that though the question was neither raised before the Tribunal nor dealt with by it, yet it was the basis of the decision of the ITO and the AAC. The Tribunal, on appeal, could not overlook such a question. Therefore, a question of law did arise out of the Tribunal's order. The case at hand stands on a stronger footing since, as already stated earlier, the Tribunal has in its appellate order made express mention of the point raised before the ITO as well as the AAC. The Tribunal was, it would bear repetition to say, very much alive to the question of law as reframed and referred to this court, namely, the effect of non-compliance with the provisions of s. 131 of the Act. We, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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