DAYAL SONS vs COMMISSIONER OF INCOME TAX

M. Srinivasans C.J.

Before answering the question referred to us in this case we are, with some pain in heart, referring to the conduct of counsel for the applicant, namely, Mr. K.D. Mohan. So far, to our recollection, he has not chosen to appear before this court at least in four cases decided earlier. We went on to dispose of those cases on the merits unmindful of the absence of counsel as we had all the records before us. But this kind of failure to appear before the court is being persisted in by the said counsel. We are, therefore, constrained to make a remark about his conduct in our judgment in this case. It is highly improper on the part of counsel on record to be away from the court. If he is not able to appear before the court he should make arrangements to be represented before the court by some other advocate or if he is not interested in the case he should have appeared before the court and informed the court that he is not so interested. Counsel on record in this case, Mr. K.D. Mohan, has simply chosen to ignore this court. It is not necessary for us to set out in this judgment as to what should be the conduct of an advocate. The profession of an advocate is a very noble profession and he is entrusted with a duty to be performed in the court. He is not only an agent of the client in one sense but also an officer of the court. He has got three-fold duties ; one towards his client ; another towards the court and the third towards the opposing counsel. In this case we find that Mr. K.D. Mohan has failed to discharge any of the three duties. In the circumstances, we are not only including these remarks in our judgment but also directing a copy of this judgment to be forwarded to the State Bar Council for taking an appropriate action against the said advocate if the Bar Council considers it fit.

We find from the cause list that one Mr R.N. Sharma has also associated himself with Mr. K.D. Mohan in this case. No doubt, we are not in a position to say whether Mr. R.N. Sharma was associated in the cases in which Mr. K.D. Mohan had entered appearance which were considered by us on earlier occasions but we find that today in two cases, namely, ITRs Nos. 4 and 5 of 1998, Mr. R.N. sharma is also absent though he is on record. In this case also Mr. R.N. Sharma is absent. His conduct is also equally reprehensible and the matter must be considered by the Bar Council.

Turning to the merits of the case, we find that two questions have been referred to this court which read as follows :

"1. Whether, in the facts and circumstances of the case, the learned Income Tax Appellate Tribunal is justified in sustaining the addition of Rs. 20,093 which, in fact, is a cash shortage ?

Whether, in the facts and circumstances of the case, the learned Income Tax Appellate Tribunal is justified in sustaining the addition of Rs. 16,420.52 ?"

A perusal of the questions will itself show that both are questions of fact and no question of law arises for consideration u/s 256(1). The Tribunal has chosen to say "that some dispute on principle is involved in the matter and it would, therefore, be safer to submit rather than to withhold the reference." At the end of the reference order, the Tribunal has said, "as desired, the questions of law are submitted for opinion of the court". We are afraid that the course adopted by the Tribunal is not warranted by section 256 of the Income Tax Act. The Tribunal has to find that there is a question of law which requires to be referred to the High Court under that section. It is only if the Tribunal is satisfied that a question of law does arise, then it can make a reference to the High Court and not otherwise. It cannot simply act on the desire of the parties concerned, nor can it say that it will be a safer course to make a reference rather than refuse to make the reference.

On the facts, we find that as per cash book of the assessee on 31- 3-1978, the opening cash balance was Rs. 2,41,088 and the outgoings were Rs. 2,08,586. The cash-in-hand should have been Rs. 32,502 but the assessee had shown cash in-hand at Rs. 12,409. The assets had been thus reduced by Rs. 20,093. As the assessee has failed to explain the discrepancy, he admitted the same and the Income Tax Officer made the addition. That order was upheld by the Appellate Assistant Commissioner. However, before the Tribunal the assessee contended that there was an entry of Rs. 43,000 on the receipts side against sales account. Those sales were partly for cash and partly credit sales. If credit sales were excluded, it was contended that there would be no difference and it was further contended that there was a contra entry of Rs. 16,421 on the credit side of the cash book. The Tribunal found that no record has been produced in support of the said contra entry. Thus, the Tribunal is justified in confirming the additions made by the Income Tax Officer which had been confirmed by the Appellate Assistant Commissioner.

The second question relates to the credit entry of Rs. 16,421. The Income Tax Officer noticed that even though the cash had gone out to this extent from the cash book in the account of Jwala Dass Cloth, no corresponding debit entry had been made. That had the effect of reducing the debit balance by Rs. 16,421. If the account was properly posted, the debit balance would increase by this figure and thus the value of the assets would increase. The assessee''s contention in that behalf was that this was covered by cash-in-hand at Rs. 20,093 added against the first ground but that contention was rejected by the Tribunal on the ground that the cash had gone out of the books but it was not reflected in the corresponding account.

In the circumstances, we do not find any error whatever in the view taken by the Tribunal. Hence, both the questions referred to us are answered in the affirmative and we hold that the Tribunal was justified in sustaining the addition of Rs. 20,093 which, in fact, is a cash shortage and also in sustaining the addition of Rs. 16,420.52.