Case: Anil Kumar Roy Chowdhury and Others Vs. Commissioner of Income Tax, West Bengal II

is also true that the order of the Pakistan Agricultural Income-tax Officer was not conclusive on the point because "Hindu undivided family" as defined in section 2(8) of the Bengal Agricultural Income-tax Act, 1944, means a "Hindu undivided family governed by Mitakshara law" and does not include a Dayabhaga undivided family; therefore, even if the income was of the undivided family of the appellants, the Pakistan Agricultural Income-tax Officer had to assess it in the hands of the individual members of the family who belong to the Dayabhaga school of Hindu law. But the claim that the income belonged to the appellants in their individual capacity was admittedly made before the Appellate Assistant Commissioner who did not accept it giving reasons for his decision and the Tribunal in appeal held that these were not valid reasons. No objection, however, appears to have been taken either before the Appellate Assistant Commissioner or before the Tribunal that the assessee was not entitled to raise the contention which was not specifically raised before the Income-tax Officer. No such question was sought to be raised in the applications under sections 66(1) and 66(2). We do not think that the High Court had jurisdiction in a reference under section 66 to go behind the order of the Appellate Tribunal to investigate what case the assessee had initially made when the agreed statement of case sets out the assessees claim as finally made and considered. Admittedly, there is no evidence that the property from which the income in question accrued was the property of the Hindu undivided family. The person who asserts that a property is joint family property has to prove that it is so. Nothing appears from the order of the Income-tax Officer or the Appellate Assistant Commissioner or the Tribunal on which a presumption might arise that the property was acquired with the income of some joint property which the appellants may have possessed. In the absence of any such evidence the burden cannot shift to the appellants to prove affirmatively that the property in question was acquired with the joint family funds. The conclusions of fact recorded by the Tribunal cannot, therefore, be said to be without any basisIn our opinion, the approach of the High Court was incorrect and this has vitiated the answers it has given to the questions referred to it. It is well-settled that in a reference under section 66 of the Act, the High Court exercises advisory jurisdiction and does not function as a court of appeal. The nature of the High Courts jurisdiction in dealing with references under section 66 was explained by this court in Commissioner of Income-tax v. Calcutta Agency Ltd. as follows: "The jurisdiction of the High Court in the matter of income-tax references is an advisory jurisdiction and under the Act the decision of the Tribunal on facts is final, unless it can be successfully assailed on the ground that there was no evidence for the conclusions on facts recorded by the Tribunal. It is, therefore, the duty of the High Court to start by looking at the facts found by the Tribunal and answer the questions of law on that footing. Any departure from this rule of law will convert the High Court into a fact-finding authority, which it is not under the advisory jurisdiction. The statement of the case under the rules framed under the Income-tax Act is prepared with the knowledge of the parties concerned and they have a full opportunity to apply for any addition or deletion from that statement of the case. If they approved of that statement that is the agreed statement of facts by the parties on which the High Court has to pronounce its judgment." 4. In India Cements Ltd. v. Commissioner of Income-tax this court again observed that the High Court must accept the findings of fact made by the Appellate Tribunal and the correctness of these findings of fact cannot be questioned except by applying under section 66 expressly raising the question about the validity of the findings. In Rameshwar Prasad Bagla v. Commissioner of Income-tax this court reiterated the law stated in Commissioner of Income-tax v. Calcutta Agency Ltd. and India Cements Ltd. v. Commissioner of Income-tax"It is for the Tribunal to decide questions of fact, and the High Court in a reference under section 66 of the Act cannot go behind the Tribunals findings of fact. The High Court can only lay down the law applicable to the facts found by the Tribunal. The High Court and the Supreme Court, in an appeal against the judgment of the High Court given in a reference under section 66 of the Act, are not constituted courts of appeal against the order of the Tribunal. These courts only exercise advisory jurisdiction in such references. The High Court in a reference under section 66 of the Act can, however, go into the question as to whether the conclusion of the Tribunal on a question of fact is based upon relevant evidence............The fact that the High Court on appreciation of evidence would have arrived at a conclusion of fact different from that of the Tribunal did not warrant interference with the finding of the Tribunal." 5. On the facts as found by the Tribunal the answer to the question referred under section 66(1) must, therefore, be in the affirmative. As regards the three questions referred under section 66(2), for the reasons already stated, the Tribunal was right in holding that section 25A of the Indian Income-tax Act, 1922, had no application in the present case and the answer to the first question must also be in the affirmative. In view of the affirmative answers to these two questions, the other two questions referred under section 66(2) do not really arise; we have, however, already held that on the facts appearing from the order of the Tribunal the onus was upon the department to prove that the income in question belonged to the Hindu undivided family.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The High Court observed that the question whether the agricultural land in Pakistan belonged to the Hindu undivided family or to its members individually was "a crucial question of fact" and was of opinion that the Tribunal was wrong in allowing the assessee to raise this question which was not raised before thex Officer. The High Court held that the conclusion reached by the Tribunal that the members of the undivided family owned the property in their individual capacity "was not supported by any fact or evidence". According to the High Court the assessees claim could succeed only if the requirements of section 25A were satisfied. The High Court also found that "even the remittances from Pakistan were being absorbed and appropriated to the credit of joint accounts of the Hindu undivided family here in India, as already indicated, and there was the fact of blending indicated by that act". These facts, however, do not appear either from the statement of case or the order of the Tribunal. On the view taken by it, the High Court answered the question referred under section 66(1) in the negative in favour of the revenue. Of the three questions referred under section 66(2), the High Court answered question (a) in the negative and in favour of the revenue holding that the Tribunal was wrong in saying that section 25A of thex Act had no application in the present case. Question (b) was also answered in the negative and in favour of the revenue on the finding that on the facts and circumstances the Tribunal was wrong in placing the onus upon the department. Question (c) too was answered in the negative and in favour of the revenueIt does not seem to us that the High Court was right in thinking that the assessees case never was that the agricultural income did not belong to the Hindu undivided family but to its members in severalty. It is true, that the argument does not appear to have been made before thex Officer, but the order of the Pakistan Agriculturalx Officer on which thex Officer in Calcutta relied shows that the former had assessed the income in the hands of the individual members of the family. It is also true that the order of the Pakistan Agriculturalx Officer was not conclusive on the point because "Hindu undivided family" as defined in section 2(8) of the Bengal Agriculturalx Act, 1944, means a "Hindu undivided family governed by Mitakshara law" and does not include a Dayabhaga undivided family; therefore, even if the income was of the undivided family of the appellants, the Pakistan Agriculturalx Officer had to assess it in the hands of the individual members of the family who belong to the Dayabhaga school of Hindu law. But the claim that the income belonged to the appellants in their individual capacity was admittedly made before the Appellate Assistant Commissioner who did not accept it giving reasons for his decision and the Tribunal in appeal held that these were not valid reasons. No objection, however, appears to have been taken either before the Appellate Assistant Commissioner or before the Tribunal that the assessee was not entitled to raise the contention which was not specifically raised before thex Officer. No such question was sought to be raised in the applications under sections 66(1) and 66(2). We do not think that the High Court had jurisdiction in a reference under section 66 to go behind the order of the Appellate Tribunal to investigate what case the assessee had initially made when the agreed statement of case sets out the assessees claim as finally made and considered. Admittedly, there is no evidence that the property from which the income in question accrued was the property of the Hindu undivided family. The person who asserts that a property is joint family property has to prove that it is so. Nothing appears from the order of thex Officer or the Appellate Assistant Commissioner or the Tribunal on which a presumption might arise that the property was acquired with the income of some joint property which the appellants may have possessed. In the absence of any such evidence the burden cannot shift to the appellants to prove affirmatively that the property in question was acquired with the joint family funds. The conclusions of fact recorded by the Tribunal cannot, therefore, be said to be without any basisIn our opinion, the approach of the High Court was incorrect and this has vitiated the answers it has given to the questions referred to it. It isd that in a reference under section 66 of the Act, the High Court exercises advisory jurisdiction and does not function as a court of appeal4. In India Cements Ltd. v. Commissioner ofx this court again observed that the High Court must accept the findings of fact made by the Appellate Tribunal and the correctness of these findings of fact cannot be questioned except by applying under section 66 expressly raising the question about the validity of the findings. In Rameshwar Prasad Bagla v. Commissioner ofx this court reiterated the law stated in Commissioner ofx v. Calcutta Agency Ltd. and India Cements Ltd. v. Commissioner oft is for the Tribunal to decide questions of fact, and the High Court in a reference under section 66 of the Act cannot go behind the Tribunals findings of fact. The High Court can only lay down the law applicable to the facts found by the Tribunal. The High Court and the Supreme Court, in an appeal against the judgment of the High Court given in a reference under section 66 of the Act, are not constituted courts of appeal against the order of the Tribunal. These courts only exercise advisory jurisdiction in such references. The High Court in a reference under section 66 of the Act can, however, go into the question as to whether the conclusion of the Tribunal on a question of fact is based upon relevant evidence............The fact that the High Court on appreciation of evidence would have arrived at a conclusion of fact different from that of the Tribunal did not warrant interference with the finding of the Tribunal."5. On the facts as found by the Tribunal the answer to the question referred under section 66(1) must, therefore, be in the affirmative. As regards the three questions referred under section 66(2), for the reasons already stated, the Tribunal was right in holding that section 25A of the Indianx Act, 1922, had no application in the present case and the answer to the first question must also be in the affirmative. In view of the affirmative answers to these two questions, the other two questions referred under section 66(2) do not really arise; we have, however, already held that on the facts appearing from the order of the Tribunal the onus was upon the department to prove that the income in question belonged to the Hindu undivided family.