Case: Commissioner of Income Tax, West Bengal Vs. Brij Lal Lohia and Mahabir Prasad Khemka (Executors of The Late Kanailal Lohia)

HEGDE J. 1. These are appeals by special leave. The only question that arises for decision in these appeals is whether, on the facts and in the circumstances of the case, the finding of the Tribunal that the gifts alleged to have been made by the assessee to his brother, Brij Lal Lohia, and his nephew, Nand Kishore Lohia, are genuine gifts In these appeals we are concerned with the assessments of the assessee for the years 1947-48, 1948-49, 1949-50, 1950-51 and 1951-52. 2. The assessee is an individual. On July 12, 1943, it is said the assessee made a gift of Rs. 5, 11, 101 to his brother, Brijlal Lohia, and another sum of Rs. 2, 50, 000 to Nand Kishore Lohia, his nephew. Thereafter, the assessees brother and nephew are said to have started a new firm dealing in jute. At about the same time the assessee stopped his business. The assessee was also dealing in jute. The question for consideration is whether the gifts alleged to have been made by the assessee were genuine gifts. The question came up for consideration before the authorities under the Act while dealing with the assessment of the assessee for the years 1945-46 and 1946-47. Therein, on the basis of the material before them the Tribunal held that the gifts in question are not genuine gifts. The High Court did not interfere with the finding of the Tribunal on the basis that it was a finding of facts. When the matter was brought in appeal to this court in Kanhaiyalal Lohia (deceased by his legal representative Mahabir Prasad Khemka) v. Commissioner of Income-tax, this court also refused to interfere with the finding of the Tribunal observing that the question whether the gifts were real was a matter within the jurisdiction of the Appellate Tribunal as the final fact-finding authority. The question whether those very gifts were genuine or not again came up for consideration before the authorities under the Act while dealing with the assessments with which we are concerned in this case. In those cases the assessee adduced considerable additional evidence and on the basis of that evidence the Tribunal after taking into consideration the decisions rendered by the Tribunal in the previous proceeding came to the conclusion that the gifts in question are genuine gifts. In arriving at that conclusion the Tribunal had taken into consideration various circumstances and those circumstances as set out by the Tribunal are as follows" (a) On going through the capital account and the wealth statement of the assessee, the Tribunal found that before making this gift to the said persons the total amount standing to his credit was as follows : (i) A sum of Rs. 16, 79, 223 and Rs. 61, 968 as the balance left over to his credit in his profit and loss account (ii) A sum of Rs. 6, 32, 804 being his credit balance in his capital account in the partnership business styled Kanailal Lohia (Jute Press). These items, namely, in (i) and (ii), taken together, worked out to Rs. 23, 73, 995 (iii) House properties whose value had been estimated at Rs. 19, 00, 000 (iv) Besides those the assessee had certain further assets which had remained undisclosed till the year 1951, valued at over Rs. 20, 00, 000. " 3. The Tribunal accordingly held that the assessees financial position was such that he was capable of making gifts to his brother and nephew of 7, 61, 101. Proreeding further, the Tribunal observed : " (b) The donee after having received the gifts head deposited the said amounts with the National City Bank of New York, which bank had certified that it was the account of a firm whose partners were Messrs. Brijlal Lohia and Nandkishore Lohia and it was those persons only who were authorised to sign for and on behalf of the said firm. There were other banks also with whom the said two partners of the said firm had opened up accounts and they had also certified to the same effect (c) Affidavit dated 8th September, 1954, sworn by the assessee, in which he had stated that he had given Rs. 5, 11, 101 and Rs. 2, 50, 000 to his brother, Brijlal Lohia, and nephew, Nandkishore Lohia, respectively, and that he had no concern, right, title or interest whatsoever in the aforesaid gifted money or any business carried on by his said brother and nephew(d) Letters from Jwalaprasad Bhartia and Kashiram Lohia, who were persons in the know of the factum of the making of the gifts and testified that in fact the assessee had gifted the aforesaid amounts to his brother and nephew (e) The Tribunal also considered that the assessee had no issues and having enough to spare, he was making charities of substantial amounts to various institutions. Such of the institutions to whom the assessee had given donations, were (i) Lohia Charity Trust wherein a sum of Rs. 1, 26, 000 was donated ; (ii) K. L. Lohia Charity Trust to whom Rs. 2, 00, 000 had been donated, and (iii) Lohia College, which received Rs. 2, 03, 000 as donation from the assessee. " 4. The Tribunal took into consideration the following further circumstances (a) Registration of the firm, Messrs. Brijlal Nandkishore, under section 65 of the Indian Partnership Act with the Registrar of Firms on the 23rd December, 1948 ; (b) Sales tax registration certificates showing the two persons, namely, Brijlal Lohia and Nandkishore Lohia, as partners of the firm known as Messrs. Brijlal Nandkishore ; (c) Affidavit dated the 8th September, 1954, sworn by the assessee stating therein that he had given Rs. 5, 11, 101 and Rs. 2, 50, 000 to his brother, Brijlal Lohia, and nephew, Nandkishore Lohia, absolutely and that he had no concern, right, title or interest whatsoever in the aforesaid gifted money or in any business carried on by his said brother and nephew ; (d) Copies of the personal accounts of Brijlal Lohia and Nandkishore Lohia in the books of the partnership to show that the gifted amount was introduced by them as their capital in their partnership business and the withdrawals made by them out of the business were so negligible that it carried no meaning in saying that the profits from their business was being indirectly diverted to the assessee under the guise of these withdrawals ;(f) The assessee exercised no control at all either over the money gifted or the partnership business and had unequivocally given out on affidavit, adversely to his interest, that he had absolutely no interest in them. " 5. Any of the circumstances taken into consideration by the Tribunal cannot be said to be an irrelevant circumstance. Those circumstances have material bearing on the point in issue. It is not said that the Tribunal had ignored any one of the relevant circumstances. All that is said on behalf of the revenue is that the Tribunal has not taken into consideration the evidence of Mr. Majumdar given in the previous proceedings. Mr. Majumdars evidence was not before the Tribunal when it dealt with the cases with which we are concerned in these appeals. Therefore, the Tribunal could not have considered the evidence of Mr. Majumdar On going through the Tribunals order, we are satisfied that the finding of the Tribunal cannot be said to be a perverse finding. That finding being finding of facts, it was not open to the High Court nor is it open to this court to interfere with that finding 6. The fact that in the earlier proceedings the Tribunal took a different view of those deeds is not a conclusive circumstance. The decision of the Tribunal reached during those proceedings does not operate as res judicata. As seen earlier there was a great deal more evidence before the Tribunal during the present proceedings, relating to those gift deeds 7.

Decision:
0[ds]On going through the Tribunals order, we are satisfied that the finding of the Tribunal cannot be said to be a perverse finding. That finding being finding of facts, it was not open to the High Court nor is it open to this court to interfere with that findingThe fact that in the earlier proceedings the Tribunal took a different view of those deeds is not a conclusive circumstance. The decision of the Tribunal reached during those proceedings does not operate as res judicata. As seen earlier there was a great deal more evidence before the Tribunal during the present proceedings, relating to those gift deeds