TMI Blog1958 (11) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... ld such a finding be implied therein, when regard is had to the scope of the proceedings under section 25A and to the fact that the order under section 23(3) holding that the sum of ₹ 2,30,346 did not represent the value of the family jewels sold was passed on the same date as the order under section 25A and by the very same officer. There is ample authority for the position that where an assessee fails to prove satisfactorily the source and nature of certain amounts of cash received during the accounting year, the Income-tax Officer is entitled to draw the inference that the receipts are of an assessable nature. That is precisely what the Income-tax authorities have done in the present case, and we do not find any grounds for holding that their finding is open to attack as erroneous in law. Appeal dismissed. - - - - - Dated:- 13-11-1958 - Judge(s) : A. K.SARKAR., GAJENDRAGADKAR., VENKATARAMA AIYAR JUDGMENT The judgment of the court was delivered by VENKATARAMA AIYAR, J.---The appellant was a Hindu undivided family carrying on business as piecegoods merchants in the city of Calcutta. The present proceedings relate to the assessment of its income for the y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 346 represented concealed profits of the business, and he included the said amount in the taxable income. He also followed it up by an order imposing tax on the appellant under the Excess Profits Tax Act. The appellant took both these orders in appeal to the Appellate Assistant Commissioner who again went into the matter fully, and observed that the appellant had been changing his version as to the true character of the sales from time to time. Dealing with the discrepancy of 289 tolas between the weight shown in the partition agreement, exhibit A, and that appearing in the accounts books of Chunilal Damani, he remarked that while the explanation of the appellant before the Income-tax Officer was that it was due to alloy and brass in the jewels, before him the position taken up was that it was due to pearls and stones which had been removed from the jewels, and that the gold contained in the jewels was pure gold. He did not accept this explanation as, in his opinion, the jewels which were stated to have been in existence for three or four generations should have contained much more of alloy than was shown in the accounts of the purchaser. He also considered that the sale of gold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d been filed before the Income-tax Officer but had not been considered by him. Then the question was raised as to whether the proceedings book was, in fact, produced before the Income-tax Officer. The argument of the appellant was that the decision taken at the meeting dated April 21, 1945, which forms the concluding portion of the book had been translated into English at the instance of the Income-tax Officer, the original being in Hindi, that the said translation was marked exhibit B and contained the endorsement of the Officer "original produced", and that accordingly the book must have been produced before the Officer. But the Tribunal was not impressed by this argument. It observed that the book itself had not been initialled by the Officer, and that though the minutes of the meeting dated April 21, 1945, were genuine, there was no certainty that when it was shown to the Income-tax Officer it was contained in the book now produced, that such minutes could have found a place in another book as well, and that, therefore, the book which was sought to be admitted before it in evidence was not proved to be the book which was produced before the Officer. It was also of the opinio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals on leave granted by this court under article 136. Mr. Viswanatha Sastri, learned counsel for the appellant, raised the following contentions : (1) In view of the order of the Income-tax Officer under section 25A, it was not open to the Department to contend that the sum of Rs. 2,30,346 does not represent the value of family jewels. (2) The finding of the Income-tax authorities that the said amount represents concealed profits of business is not supported by legal evidence and is, in any event, perverse. (3) There is no evidence that the amount in question represents profits of business, and it was therefore not chargeable to tax under the provisions of the Excess Profits Tax Act. (1) On the first question, the appellant relied on certain observations in the order of the Income-tax Officer passed under section 25A as amounting to a decision that the family had the jewels mentioned in exhibit A, and that what was actually divided was only the price received therefor. Now, when a claim is made under section 25A, the points to be decided by the Income-tax Officer are whether there has been a partition in the family, and if so, what the definite portions are in which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amily jewels sold or whether it is concealed business profits. That clearly is a question of fact which is open to attack in a reference under section 66 only if it could be shown that there is no evidence to support it or that it is perverse. Now, the contention of Mr. Viswanatha Sastri for the appellant is that the finding that it is concealed profits was reached by the Income-tax Officer and by the Appellate Assistant Commissioner by ignoring the very material evidence furnished by the proceedings book, and that the Appellate Tribunal had erroneously refused to receive the book in evidence. This contention raises two controversies : (i) was the proceedings book which was produced before the Tribunal the book which was produced before the Income-tax Officer ? (ii) if it was, were the minutes of the meeting prior to April 21, 1945, relied on by the appellant before the Income-tax Officer ? Whatever view one might be inclined to take on the former question, so far as the latter is concerned, it is perfectly plain that they were not. On May 27, 1947, the enquiry was held on both the petitions under section 25A and on the quantum of income assessable to tax under section 23(3). Exhib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner does not deal with this matter either, and it is inconceivable that he would have failed to consider it if it had been pressed before him. It is also to be noted that the appellant who had obtained a return of the proceedings book from the Income-tax Officer did not file it before the Appellate Assistant Commissioner, nor did he move for its admission in evidence. Apart from taking the grounds to which we were referred, the appellant appears to have presented his case before the Appellate Assistant Commissioner precisely on the same lines on which he pressed it before the Income-tax Officer. In view of these facts, we are unable to hold that in refusing to admit the proceedings book as evidence in the appeal, the Appellate Tribunal acted perversely or unreasonably. Indeed, counsel for the appellant did not contend in the High Court that the Tribunal had acted illegally or unreasonably in refusing to admit the proceedings book in evidence. That being so, it cannot be said that the finding given by the Tribunal on an appreciation of the facts and circumstances already set out is unsupported by evidence or is perverse. The position may thus be summed up : In the business ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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