Case: Udhoji Shrikishandas Vs. Commissioner of Income Tax, Bombay City I

1. The High Court of Judicature at Bombay refused to call upon thex Appellate Tribunal to state a case and to submit questions of law arising out of the order of the Tribunal. The assessee appeals to this court with special leave In November, 1947, the assessee migrated from Pakistan to India and set up ag business in Bombay. The assessee opened a set of books in the name of his wife Gopi Bai, and made credit entries therein totalling Rs. 7, 85, 712 between 1947 and 1952. In proceedings for assessment of, thex Officer accepted the claim of the assessee that out of the amount credited, Rs. 4, 51, 843 represented the value of assets brought by the assessee when he migrated to India and rejected his claim for the balance. Thex Officer, in proceedings for reassessment commenced under section 34 of thex Act, brought to tax Rs. 79, 989 in the assessment year, Rs. 1, 89, 800 in the year0 and Rs. 64, 880 in the year. The Appellate Assistant Commissioner accepted the case of the assessee that the three amounts were part of the assets brought with him either in cash or as jewellery when the assessee migrated to India. Thex Appellate Tribunal confirmed the order of the Appellate Assistant Commissioner in so far as it related to the assessment years9 and. But the Tribunal held that the assessee had failed to prove the claim that Rs. 55, 293, out of the amount of Rs. 64, 880 assessed to tax in, represented the value of ornaments, which the assessee claimed were sold by him after the death of his wife, Gopi Bai. The Tribunal accepted the claim of the assessee that the balance of Rs. 9, 537 represented cash gifts received by Ishwari Bai. The Tribunal accordingly set aside the order of the Appellate Assistant Commissioner and directed that Rs. 55, 293 be brought to tax in the assessment yeare assessee then applied to the Tribunal praying that a statement of the case be drawn up and the following questions arising out of the order of the Tribunal be submitted to the High Court:      " (a) Whether there was evidence before the Tribunal to hold that the credit of Rs. 55, 293 in the account of the wife of the assessee did not represent the sale proceeds of her gold ornaments ?      (b) If the answer to question No. 1 is in the affirmative, whether the sum of Rs. 55, 293 could be held as the undisclosed income of the assessee himself ? "      The Tribunal rejected the application holding that they had not accepted the case of the assessee about the sale of the ornaments of Gopi Bai.      The assessee then applied to the High Court of Bombay for an order under section 66(2) of the Indianx Act directing the Tribunal to state a case and refer the questions of law arising out of the order of the Tribunal. The High Court rejected the application

Reasoning:
5. The judgment of the Tribunal suffers from a manifest infirmity. The Tribunal has not adjudicated upon the truth of the case of the assessee in the light of the evidence adduced by the assessee in support of his case. The infirmity becomes more pronounced when regard is had to the fact that, relying upon the documentary evidence tendered by theassessee,the Appellate Assistant Commissionerhad accepted the claim of the assessee relating to the sale of Gopi Bais ornaments. The Tribunal was undoubtedly competent to disagree with the view ofthe Appellate Assistant. But in proceeding to do, theTribunal had to act judicially, i.e., to consider all the evidence in favour of and against the assessee. An order recorded on a review of only a part of the evidence and ignoring the remaining evidence cannot be regarded as conclusively determining the questions of fact raised before the Tribunal6. It is for thex authorities to prove that a particular receipt is taxable. In deciding whether an item of receipt is taxable as, theTribunal may consider the evidence in the light of the statements made by theassessee,his conduct and the probabilities, but in arriving at its conclusion there must be a fair and reasonably full review of the evidenceIn our view, questions of law set out in the application of the assessee under section 66(1) did arise out of the order of the Tribunal