TMI Blog1960 (9) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... w that no question of law arose from the order of the Tribunal and we see no grounds for interference with the judgment and order of the Bombay High Court, dated October 4, 1956. The appeal accordingly fails and is dismissed. - - - - - Dated:- 22-9-1960 - Judge(s) : S. K. DAS., M. HIDAYATULLAH., J. C. SHAH JUDGMENT The judgment of the court was delivered by S. K. DAS, J.---For the assessment year 1946-47 the appellant Homi Jehangir Gheesta was assessed to income-tax on a total income of Rs. 87,500 under section 23(3) of the Indian Income-tax Act, 1922. The circumstances in which he was so assessed were the following : " The appellant's case was that M. H. Sanjana, maternal grandfather of the appellant, died on or about May 10, 1920. There was litigation between his widow Cursetbai and Bai Jerbanoo, Sanjana's daugher by his first wife, about the validity of a will left by Sanjana. Bai Jerbanoo was the appellant's mother. The litigation was compromised and the appellant's mother got one-third share in the estate left by Sanjana the total value of which estate was about Rs. 9,88,000. Bai Jerbanoo died in 1933, leaving her husband, Jehangirji (appellant's father), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d uncle were taken by the Income-tax Officer, D-II Ward, Bombay, and a further statement of the appellant's uncle, Kaikhusroo, was taken by the appellate authority. That authority came to the same conclusion as the Income-tax Officer had come to. Then there was an appeal to the Income-tax Appellate Tribunal, which again reviewed the facts of the case. The Tribunal pointed out the following important discrepancies in the case sought to be made out by the appellant : " (i) ...... Declaration dated January 24, 1946, by the assessee says that mother's legacy was invested 'by my father and my late uncle, Phirozeshaw'. His letter dated January 7, 1947, says that his uncle (i.e., Phirozeshaw) only managed his estate. The object of this variation is obviously to shield his father from inconvenient examination. The uncle had already departed for his eternal home. (ii) Assessee's letter dated January 7, 1947, says that the uncle, Phirozeshaw, handed over money 'to me and my father' before his death. The affidavit dated September 29, 1949, tells another story, viz., the executor, Kaikhusroo, handed over money to the assessee after Phirozeshaw's death. In another part of the said affi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r consideration is this-was the High Court right in summarily rejecting the petition under section 66(2) ? In other words, did the order of the Tribunal dated October 7, 1955, on the face of it raise any question of law ? On behalf of the appellant it has been argued that the principles laid down by this court in Dhirajlal Girdharilal v. Commissioner of Income-tax apply, because though the decision of the Tribunal is final on a question of fact, an issue of law arises if the Tribunal arrives at its decision by considering material which is irrelevant to the enquiry, or by considering material which is partly relevant and partly irrelevant, or bases its decision partly on conjectures, surmises and suspicions. It is contended that on the face of it the decision of the Tribunal suffers from all the three defects mentioned above. Learned counsel for the appellant has made a grievance of that part of the order in which the Appellate Tribunal states : " We were also not told why the deceased uncle, if he took charge of the minor's money, did not hand it over to Bai Aloo when she became major in 1939 or even when she got married in 1944." It is contended that this was an irrelevant con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther to attend on a particular date in obedience to the summons issued against him. The father was actually examined later and his statements were taken into consideration. One point made by the Tribunal was that no explanation was forthcoming as to why the uncle took charge of the share of the appellant and his sister when their father was alive and why the father allowed himself to be effaced in the matter of custody and management of the funds belonging to his children. We consider that this circumstance was also a relevant consideration and if the father was in a position to give an explanation, he should have done so when he made his statement before the Income-tax Officer, D-II Ward, Bombay, on February 8, 1952. The Tribunal states : " We were also told that the assessee was taking his education between 1943 and 1950 and as such he had no opportunity to earn any income. In a place like Bombay and particularly in the family of a businessman, a person may earn even when he learns." These observations of the Tribunal have been very seriously commented on by learned counsel for the appellant. Learned counsel has stated that certificates from the school, college and university ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guments advanced before us it is perhaps necessary to add that in considering probabilities properly arising from the facts alleged or proved, the Tribunal does not indulge in conjectures, surmises or suspicions. It has also been argued before us that even if the explanation of the appellant as to the sum of Rs. 87,500 is not accepted, the Department did not prove by any direct evidence that the amount was income in the hands of the appellant. We do not think that in a case like the one before us the Department was required to prove by direct evidence that the sum of Rs. 87,500 was income in the hands of the appellant. Indeed, we agree that it is not in all cases that by mere rejection of the explanation of the assessee, the character of a particular receipt as income can be said to have been established ; but where the circumstances of the rejection are such that the only proper inference is that the receipt must be treated as income in the hands of the assessee, there is no reason why the assessing authorities should not draw such an inference. Such an inference is an inference of fact and not of law. For the reasons given above we are of the view that no question of law arose ..... X X X X Extracts X X X X X X X X Extracts X X X X
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