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Judgment
From the record, it appears that the assessee was duly served with the notice, but none appears for the assessee and, therefore, we have heard only learned standing counsel for the applicant.
This Court by order dt. 9th April, 1980 directed the Tribunal to draw up a statement of the case and refer the following question to this Court for its opinion under s. 256(2) of the IT Act, 1961.
"Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in deleting an addition to Rs. 17,000 made by the ITO to the assessees income and sustained by the AAC in first appeal ?"
This is how the Tribunal referred the aforementioned question at the instance of the Revenue to this Court for its opinion.
In the Tribunals order dt. 4th August, 1978, the facts found are that a sum of Rs. 17,051 had been withdrawn by one of the partners on 3rd November, 1973 from the books of account of the firm who was to go on business tour for effecting purchases from outside. It is said that a theft took place at the residence of the partner on the night of 3rd/4th November, 1975 and FIR was lodged on 4th November, 1975 itself. This is how business loss was claimed in respect of the said amount, which was allowed by the Tribunal holding that the loss was on business account taking into consideration the facts that the amount had been withdrawn and kept at the residence by the partner as next following day was Sunday; that heavy withdrawals from the books had been made earlier also for business purchases and that the amount had to be withdrawn again for the same business tour from the books.
There is no dispute regarding the fact-situation as stated above. On these facts, we are of the opinion that the Tribunal rightly allowed the loss in respect of the aforementioned amount.
The question is, therefore, answered in the affirmative, that is, in favour of the assessee and against the Revenue.