Case: Homi Jehangir Gheesta Vs. The Commissioner Of Income-Tax, Bombay

The Tribunal also rightly pointed out that the fact that Bai Allo was not assessed did not make the story any more probable.9. The Tribunal stated in its order that a summons was issued to the father by the Income-tax Officer to appear before the latter on June 23, 1950. The father failed to comply with the summons. This circumstance, it is argued, should not have been used against the appellant, because the record showed that the summons was served on the father on June 22, 1950, for attendance on the next day and the father wrote a letter stating that it was not possible for him to attend on the next day and, therefore, asked for another date. We do not think that this circumstance vitiates the order of the Tribunal which was based on grounds much more substantial than the failure of the father 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, 1952.10. The Tribunal states : "We were also told that the assessee was taking his education between 1943 and 1950 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 authorities were produced by the appellant right upto 1950 which showed that the appellant was a student till 1950 and after seeing the certificates the Tribunal should not have said - "We were also told etc". According to learned Counsel this showed that the finding of the Tribunal was coloured by prejudice. We are unable to agree. Even if it be taken that the appellant satisfactorily proved that he was a student till 1950, we do not think that it makes any real difference as to the main question at issue, which was whether the appellant received the sum of Rs. 70,000/- from the estate of his mother, later increased by investments to Rs. 87,500/- in 1945. The Tribunal rightly pointed out that no evidence was given of the value of the estate left by the mother, though there was some evidence of what the mother received from the estate of her father Sanjana; nor there any evidence of the investments said to have been made which led to a addition to the original sum of Rs. 70,000/-. It has been argued that it was a mere surmise on the part of the Tribunal to say that in a place like Bombay a person may earn when he learns. Even if the Tribunal is wrong in this respect, we do not think that it is a matter of any consequence.11. We must read the order of the Tribunal as a whole to determine whether every material fact, for and against the assessee, has been considered fairly and with due care; whether the evidence pro and con has been considered in reaching the final conclusion; and whether the conclusion reached by the Tribunal has been coloured by irrelevant considerations or matters of prejudice. Learned Counsel for the appellant has taken us through the entire order of the Tribunal as also the relevant materials on which it is based. Having examined the order of the Tribunal and those materials, we are unable to agree with learned Counsel for the appellant that the order of the Tribunal is vitiated by any of the defects adverted to in 1954-26 ITR 736 : ((S) AIR 1955 SC 271 ) or Omar Salary Mohamed Sait v. Commissioner of Income-tax, Madras, 1959-37 ITR 151 : (AIR 1959 SC 1238 ). We must make it clear that we do not think that those decisions require that the order of the Tribunal must be examined sentence by sentence, through a microscope as it were, so as to discover a minor lapse here or an incautious opinion there to be used as a peg on which to hang an issue of law. In view of the arguments 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.12. 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.

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

Explanation:
0[ds]The argument of learned Counsel for the appellant is that it was not a relevant consideration as to why Phirozeshaw did not hand over the money to Bai Aloo in 1939 or in 1944, and if Bai Aloos statements were to be taken into consideration, they were in favour of the appellant inasmuch as no assessment was made on Bai Aloo in respect of the sum she had received. We do not consider that the circumstances referred to by the Tribunal in connexion with Bai Aloos statement were irrelevant. What the Tribunal had to consider was the correctness or otherwise of a story in which the mother was stated to have left Rs. 2,10,000 out of which the heirs got one-third share each. The Tribunal had to consider each aspect of the story in order to judge of its probability and from that point of view it was relevant consideration as to why Bai Aloos money was not paid when she became major or when she got married. It was also a relevant consideration as to what the father of the appellant did with his share of the money and the Tribunal rightly pointed out that the father took cover under mixing of investments." These were relevant considerations for judging the probability of he story. The Tribunal also rightly pointed out that the fact that Bai Allo was not assessed did not make the story any more probable.The Tribunal stated in its order that a summons was issued to the father by the Income-tax Officer to appear before the latter on June 23,must make it clear that we do not think that those decisions require that the order of the Tribunal must be examined sentence by sentence, through a microscope as it were, so as to discover a minor lapse here or an incautious opinion there to be used as a peg on which to hang an issue of law. In view of the arguments 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.12. 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.