Commissioner of Income Tax vs K.V. Muniswamy Mudaliar

Ismail, J.—The Income Tax Appellate Tribunal, Madras Bench, pursuant to the order of this court dated February 8, 1971, made in Tax

Case Petition No. 32/70 has referred the following question u/s 256(2) of the Income Tax Act, 1961, for the opinion of this court:

Whether, on the facts and in the circumstances of the case, and on the materials available on record, the Appellate Tribunal was right in law in

holding that the investment of Rs, 20,000 in lands made by the assessee during the year ended March 31, 1962, relevant to the assessment year

1962-63, came ''from out of the intangible additions made in the assessments of the firm in which the assessee was a partner ?

The assessee in this case invested a sum of Rs. 10,000 in certain lands in the name of his wife on June 16, 1961, and another sum of Rs. 10,000

in his own name on July 6, 1961. When the assessee was called upon to explain the source of these amounts the assessee stated that he was a

partner of M/s. K. K. Subramania Mudaliar and in the assessment of the partnership additions were made by the Income Tax Officer from 1959-

60 onwards and out of those additions his share would be Rs. 32,567 and with that amount, the income from certain agricultural lands owned by

him was also utilised for making these investments. The Income Tax Officer declined to accept this contention and assessed the entire amount of

Rs. 20,000 in his hands. When the assessee preferred an appeal to the Appellate Assistant Commissioner, that officer held that the Income Tax

Officer was not justified in adding back this sum of Rs. 20,000 as the assessee''s share under the head ""Other sources"". Against the order of the

Appellate Assistant Commissioner, the department preferred an appeal to the Income Tax Appellate Tribunal. The Appellate Tribunal, by its

decision dated March 5, 1969, affirmed the conclusion of the Appellate Assistant Commissioner and while doing so relied on the decision of this

court in S. Kuppuswami Mudaliar Vs. Commissioner of Income Tax, Madras, . It is the correctness of this conclusion of the Tribunal that is

challenged before us in the form of the question referred to already.

The Tribunal itself has given the figures as to what would be the share of the assessee''s one-third share out of the additions made to the income

of the partnership as follows :

Assessment year One-third of intangible additions

Rs.

1959-60 16,400

1960-61 5,923

1961-62 1,244

1962-63 16,135

39,702

The Tribunal, while holding that this amount was available to the assessee for making the investment of Rs, 20,000 in question, observed that

there was no evidence on record to show that these intangible additions flowed back into the books of the assessee''s firm in any other manner and

there was also no evidence of any other investments made by the firm itself outside the books of account. Consequently, the view of the Tribunal

was that in the absence of any such material pointing to the use of the funds by the firm itself, the estimated additions made in the firm''s assessment

must be treated as real income in the hands of the partners on the ratio of the decision of this court in S. Kuppuswami Mudaliar Vs. Commissioner

of Income Tax, Madras, . We are clearly of the opinion that this conclusion of the Tribunal is unexceptionable.

One argument that was advanced before the Tribunal and repeated before us is that the investments in question were made on June 16, 1961,

and July 6, 1961, respectively, and, therefore, the additions made for the year 1962-63 ought not to be taken into account. Even if the additions

made for the year 1962-63 is not taken into account, still the additions made for the previous three years are sufficient to cover the investment of

Rs. 20,000. Independently of this, we are also of the opinion that the additions might have been made at the time when the assessment was

completed but the actual money would have been available during the course of the accounting year itself and, therefore, simply because the

additions are made very much later, it cannot be contended that the amounts so added would not be available to the assessee to be made use of.

Even assuming the entire sum of Rs. 16,135 would not have been available by the time the investments were made on June 16, 1961, so far as the

year 1962-63 is concerned, still the income referable to the months of April, May and June would certainly be available to the assessee.

The learned counsel for the revenue drew our attention to our judgment in Commissioner of Income Tax Vs. Banarsilal Dhawan, , wherein we

have elaborately considered the ratio of the decision of this court in S. Kuppuswami Mudaliar Vs. Commissioner of Income Tax, Madras, , and

contended that the view of the Tribunal in this case is not in consonance with the view which we have expressed in that judgment. We are unable to

accept this contention. In the judgment referred to above, we dealt with a case where cash credits''were found in the names of third parties and the

assessee, not being in a position to explain those credits, wanted to call upon the ratio of S. Kuppuswami Mudaliar Vs. Commissioner of Income

Tax, Madras, as if it laid down an universal principle of law to the effect that whenever an assessee is not able to explain the cash credits standing

in the names of the third parties, he could fall, upon S. Kuppuswami Mudaliar Vs. Commissioner of Income Tax, Madras, as if it were the

residuary refuge for such assessee. What we stated in that judgment is not in any way opposed to what the Tribunal has held in the present case

and what we are observing with reference to the finding of the Tribunal. Under these circumstances, the question referred to this court is answered

in the affirmative and against the department. The assessee is entitled to his costs. Counsel''s fee Rs. 500.