TMI Blog1980 (9) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... under s. 35 of the Act by the successor officer when the lease arrangement was considered and accepted by the predecessor officer who made the original assessment for the year 1971-72 ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in upholding the assessments of the applicant for income derived from the leasehold land, when there was already an assessment on one of the lessees for the year 1970-71, which was confirmed in appeal by the Tribunal ?" 2. The assessee at whose instance these references have been made is a cardamom planter, who had owned 34 acres and 15-2/3 cents of cardamon plantation in Udumbumcholla Taluq. The relevant assessment years with which we are concerned in these case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvance of Rs. 1,450 each from both the parties towards the lease amount on 18-9-68. Thus, he was in possession of the properties only for a period of 6 1/2 months from 18-4-68 to 18-9-68, during the accounting year. The originals of the lease deeds have been produced and it is accepted. Hence, half of the income during the year from the properties will be assessed at the hands of the assessee and the remaining half at the hands of the lessees." 4. After entering the said finding he proceeded to assess the net income derived from the estate to the best of his judgment and completed the assessment. In the course of the assessment proceedings for the following year 1971-72, the then Agrl. ITO, who had succeeded the Agrl. ITO who had made th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter in appeal before the AAC reiterating his contention regarding the alleged illegality of the action taken under s. 35 of the Act and urging also that in any event the estimate of the income made by the assessing authority was arbitrary and excessive. The AAC rejected the first contention and held that the ITO was justified in law in reopening the assessment under s. 35 of the Act. On the merits of the assessment, the AAC effected a slight modification in the assessee's favour in regard to the quantification of the income derivable from the cardamom estate. The assessee then approached the Tribunal by filing a second appeal reiterating the contentions urged by him before the first appellate authority. The Tribunal agreed with the AAC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal. Those second appeals were disposed of by the Tribunal along with the second appeal arising out of the reassessment proceedings for the year 1970-71 by a common order. As already noticed, while dealing with the facts pertaining to the assessment made for 1970-71, the Tribunal made a further reduction in respect of the taxable income of the assessee by reducing the estimated income as originally fixed by the ITO and modified to some extent by the appellate authority. 6. Being dissatisfied with the relief so granted by the Tribunal the assessee moved the Tribunal for making these references to this Court and that is how these matters have now come before us. 7. The first question that arises for consideration is whether the init ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the lease deeds were sham documents and that the assessee himself had throughout continued in possession of the entirety of the cardamom plantation. This was a mere change of opinion on the part of the successor-officer in respect of a question, on which a finding had been entered by his predecessor the same materials. It is now well established that such a mere change of opinion on the part of either the same officer or his successor in regard to any relevant matter concerning the tax liability of the assessee will not justify resort being taken to the power conferred by s. 35 of the Act. We find from the order of the Tribunal that one of the aspects relied on by it for sustaining the legality of the action taken by the assessing authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finding of the subordinate taxing authorities that the lease deeds in question were sham and nominal and the assessee himself continued to be in possession of the entire extent of the plantation subsequent to October 14, 1968. The question is purely one of fact and valid reasons have been stated by the Tribunal for upholding the conclusion concurrently arrived at by the assessing authority and the AAC that the lease deeds in question were absolutely sham and fraudulent documents and they were created only for the purpose of evading tax liability. 9. In the result, in the light of what we have said in relation to the validity of the reassessment proceedings taken for the year 1970-71, we answer question No. 1 in the negative, i.e., in fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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