Case: Kanhaiyalal Lohia (Deceased) (By His Legal Representatives) Mahabir Prasad Khemka &amp; Others Vs. Commissioner of Income Tax, West Bengal

"Whether in the circumstances of this case where the Income-tax Officer, District III(2), separately assessed the business run in the name of Brijlal Nandkishore as belonging to a partnership firm consisting of Brijlal and Nandkishore, the Income-tax Officer, Non-Companies E. P. T. District can assess the income from the same business in the hands of thequestion was answered against him. Kanhaiyalal Lohia also applied under S. 66 (2) to the High Court of Calcutta for reference of the other questions, but failed. No appeal has been filed by him against the order of the High1. These appeals with special leave were filed by one Kanhaiyalal Lohia, who died during the pendency of the appeals, and who is now represented by the executors appointed under his will. By these appeals, which are consolidated, the appellants question an order dated January 8, 1953, of the Income-tax Appellate Tribunal (Calcutta Bench) in appeals filed by the Department against the order of the Appellate Assistant Commissioner. The Tribunal reversed the order of the Appellate Assistant Commissioner and restored that of the Income-tax Officer. Kanhaiyalal Lohia made petitions under S. 66(1) to the Tribunal, setting out a number of questions of which the following was referred to the High Courtin the circumstances of this case where the Income-tax Officer, District III(2), separately assessed the business run in the name of Brijlal Nandkishore as belonging to a partnership firm consisting of Brijlal and Nandkishore, the Income-tax Officer, Non-Companies E. P. T. District can assess the income from the same business in the hands of therefusing to direct the Tribunal to state a case or against the decision on the question referred, and the present appeals have been filed against the decision of the Tribunal.Kanhaiyalal Lohia, who was a prosperous dealer in jute had his head office in Calcutta. He had no issue, and his family consisted of his wife, his brother, Brijlal Lohia, and Brijlals son, Nandkishore Lohia. The properties of Kanhaiyalal Lohia were self-acquired, and he was always assessed as an individual. He maintained accounts according to the Ramnavami year. In his return for the account year, April 14, 1943 to April 1, 1944 (corresponding to the assessment year, 1944-45), he indicated that he had closed down in the middle of 1943 his purchasing centres in East Bengal, which stood in the name of Nandkishore, and that he had gifted to his brother Rs. 5,11,101 on July 12, 1943, and to his nephew, Rs. 2,50,000 on September 30, 1943. He showed income of his East Bengal business only up to the closure of that business.4. Brijlal and Nandkishore entered into partnership between themselves, and started a business under the name and style of "Brijlal Nandkishore." They took over the purchasing centres in East Bengal. They opened accounts in banks in the name of "Brijlal Nandkishore," and became members of the Baled Jute Association and the Jute Balers Association, and traded in their own names. A deed of partnership between them was also executed on August 5, 1953. The business of Kanhaiyala Lohia and of "Brijlal Nandkishore" was within the jurisdiction of the same Income-tax Officer. In the assessment of the partnership firm, notices were issued to the partnership both under S. 22(2) and S. 34, and the partnership also applied for registration under S. 26A of the Income-tax Act, which was granted. The partnership was also assessed for the years, 1945-46 and 1946-47. The assessment of Kanhaiyalal Lohia was completed by the Income-tax Officer. Non-Companies Income-tax cum Excess Profits Tax District, and during the assessment for the year, 1945-46, a notice was issued under S. 22 (4) of the Income-tax Act on August 24, 1949, calling for accounts of the head office at Calcutta and also the branches including the business being carried on as "Brijlal Nandkishore." Kanhaiyalal Lohia proved the above facts, producing the books of account, bank statements, registration certificate of "Brijlal Nandkishore" and evidence showing the membership of "Brijlal Nandkishore" of the two Associations. He also produced letters from four persons including one Sri A. L. Mazumdar who was questioned by the Income-tax Officer without notice to Kanhaiyalal Lohia and whose statement was also recorded. Kanhaiyalal Lohia objected to this procedure, but the Income-tax Officer, it is alleged, paid no heed to his protests, and on March 31,1950, the assessment was completed, and the income of the branches under the direct control of "Brijlal Nandkishore" was pooled with the income of Kanhaiyalal Lohia. The Income-tax Officer held that the gifts were not bona fide, and were colourable transactions. He relied upon the statement of Sri A. L. Mazumdar, which was recorded when Kanhaiyalal Lohia was not present:5. Against the assessment Kanhaiyalal Lohia appealed to the Appellate Assistant Commissioner, before whom two more letters from leading businessmen were field. The Appellate Assistant Commissioner accepted the letters which were filed, and held that the gifts were proved and were bona fide and directed the exclusion of the income of "Brijlal Nandkishore" from the assessment of Kanhaiyalal Lohia. The order of the Appellate Assistant Commissioner was pronounced on December 27, 1951. The Department appealed to the Appellate Income-tax Tribunal, Calcutta Bench. The Tribunal disagreed with the Appellate Assistant Commissioner, and held on 8-1-1953 that the gifts were not proved by the assessee by unimpeachable evidence, and that the income of "Brijlal Nandkishore" was rightly included in the assessment. As stated already, applications under S. 66(1) and S. 66(2) were made to the Tribunal and the High Court respectively. The Tribunal referred one question, but declined to refer the other questions. The High Court was then moved under S. 66(2) but without success. The High Court agreed with the Tribunal, and answered the question which was referred, against Kanhaiyalal Lohia. Before the High Court, Kanhaiyalals counsel, Dr. Pal, admitted that he could not persuade the Court to answer the referred question against the Department, and it appears that it was conceded by the Department before the High Court that the assessment of "Brijlal Nandkishore" would be cancelled. Kanhaiyalal Lohia then filed the present appeals against the order of the Tribunal dated January 8, 1953.

Reasoning:
7. In the present case, the order of the High Court on the question referred was not brought before this Court by the ordinary mode indicated in the Indian Income-tax Act, presumably because of the concession of counsel that he could not claim that the question be answered infavour of the assessee and the attitude of the Department that the assessment of "Brijlal Nandkishore" would be cancelled. The order refusing to call for a statement on questions other than the one referred is also not questioned beforewas a matter within the jurisdiction of the Appellate Tribunal as the final fact-finding authority. The Tribunal acted within, its powers in refusing to accept the evidence tendered, and looking at the circumstances of the case we cannot say that the finding has been perversely reached. For a number of years, the brother and the nephew were supported by Kanhaiyalal Lohia, and it does not appear that a gift of even a small sum was made to them to put them on their legs. Suddenly in the year 1943 Kanhaiyalal Lohia made up his mind to put them in business with a gift of the order of Rs. 7,60,000 odd. For this purpose, he had to overdraw his accounts with the Bank and to pay interest to the Bank. It does not appear why he felt that the establishment of his brother and nephew in business should be made on such a grand scale, which invoked him in debt. This circumstance, taken with the fact that Mr. Mazumdar stated that he had always complained that they were good for nothing and were idlers, makes the transactions suspicious.It was presumably done with a view to reduce the assessable profits in the hands of Kanhaiyalal Lohia, and on the evidence, the Tribunal was entitled to hold, as it did, that this was a sham transaction. In our opinion, no special circumstances exist, on which the appellants can claim to come to this Court against the decision of the Tribunal, by passing the decision of the High Court on the question referred and the refusal of the High Court to call for a statement of the case from the Tribunal on questions which the Tribunal refused to refer to the High Court. The appeals are, therefore, within the rulings of this Court in AIR 1961 SC 1708  and Civil Appeal No. 176 of 1959, D/- 24-4-1961 (SC) and must be regarded as incompetent.