Krishan Pal vs Commissioner of Income Tax

Kirpal, J.—In this petition, the petitioner is seeking reference of following 18 questions of law to this Court:

"1. Whether, on the facts and in the circumstances of the case, the Hon''ble Tribunal was right in upholding the validity of the assessment although the tax payable had not been computed and determined in the assessment order itself in accordance with the provisions of the law and without issue of any notice u/s 143(2) which is obligatory under the law?

Whether, on the facts and in the circumstances of the case, the finding recorded by the Hon''ble Tribunal that a copy of the ITNS-150 was annexed to the assessment order was perverse being not supported by any material on records?

Whether, on the facts and in the circumstances of the case, the Hon''ble Tribunal had any evidence to confirm the finding recorded by the Commissioner (Appeals)/IAC that the notice u/s 143(2)/143(3) was issued fixing the case for 6th March, 1979/25th March, 1979 and such finding was not perverse?

Whether, on the facts and in the circumstances of the case, reasonable opportunity was given to the assessee to meet the case set up by the department by supplying the material collected behind his back and giving reasonable time and facility to rebut the same?

5 Whether, on the facts and in the circumstances of the case, the Tribunal''s finding that the assessee declined and waived his right to receive material collected against him and to cross-examine the concerned parties, was based on any evidence on records and was not perverse?

Whether, on the facts and in the circumstances of the case, the Tribunal was right in basing its conclusion on the order dt. 26th June, 1976, in the case of Shri S. Ahmed Abdul Kadir v. ITO in IT Appeal No. 1278 (Mad.) of 1975-76 decided by the Madras ''B'' Bench of the Tribunal without considering whether the said decision was applicable to the present case?

Whether, on the facts and in the circumstances of the case, the Hon''ble Tribunal was right in proceeding entirely on the basis of circumstantial evidence when direct and primary evidence was available?

Whether, on the facts and in the circumstances of the case, conclusion of the Hon''ble Tribunal that the addition of Rs. 90,000 represented investment of the assessee and further that it was unexplained was not based on any material and evidence and was, therefore, perverse?

Whether, the Hon''ble Tribunal acted arbitrarily in confirming the addition of Rs. 90,000, inasmuch as it did not take into account relevant facts and material and, therefore, there was also failure and miscarriage of justice?

Whether, on the facts and in the circumstances of the case, the Hon''ble Tribunal and the Commissioner (Appeals) were justified in law in drawing the inference that the assessee had purchased the prize winning ticket from Shanker Lotteries without affording any opportunity of rebuttal to the assessee?

Whether, on the facts and in the circumstances of the case, the Hon''ble Tribunal and the learned Commissioner (Appeals) were right, in according a new and fresh finding that the assessee purchased prize winning tickets from Shanker Lotteries after the draw of lots and declaration of prize without any reference and/or enquiry from the purchasers M.P. Raffles Enterprises, Jabalpur and without reference to Shri Ramayan Singh who had altogether denied the purchase of ticket in question and without reference at all to Shanker Lotteries and their records with whom the ticket in question is assumed to have remained unsold at the time of draw of lots and without any opportunity of rebuttal to the assessee?

Whether, on the facts and in the circumstances of the case, the Hon''ble Tribunal had any evidence on record to confirm and support the finding recorded by the learned Commissioner (Appeals)/IAC that the claim for prize was lodged and/or collected on 1st January, 1976?

Whether, on the facts and in the circumstances of the case, the Hon''ble Tribunal was right in holding that the assessee had been given reasonable opportunity to meet the case of the department in keeping with the doctrine of audi alter am par tern, inasmuch as the first and the only letter of enquiry issued was as late as on 22-3-1979 and that too without enclosing any material whatsoever therewith, inasmuch as the assessee''s request for supplying further information and material made by his letter dated 26th March, 1979, was ignored and the assessment was hurriedly completed on 27th March, 1979?

Whether, on the facts and in the circumstances of the case, the finding recorded by the Hon''ble Tribunal that the material collected by the assessing authority behind the back of the assessee and utilised in framing the assessment to his prejudice was made available to the assessee, was supported by any material on record and was not perverse?

Whether, on the facts and in the circumstances of the case, reasonable opportunity was given to the assessee before recording the findings that the purchase of the lottery ticket that won prize was for a sum of Rs. 90,000 ?

Whether, on the facts and in the circumstances of the case, the Tribunal was right in not answering the question after raising it by itself as to when the onus of proving that the apparent was not real was discharged by the department?

Whether, on the facts and in the circumstances of the case, the Hon''ble Tribunal was right in law in upholding the addition of Rs. 90,000, inasmuch as, there was failure to notice that the authorities below had not discharged their onus to prove that the amount in question was unexplained investment?

Whether, on the facts and in the circumstances of the case, the Hon''ble Tribunal was right in law in endorsing the finding and inference of the authorities below that the claim for seller''s bonus could only be lodged after the claim for the prize winning ticket was made and not independently thereto and whether such finding and inference were illegal and perverse?"

The questions involved in this case arose when the petitioner showed a receipt of his winning the proceeds of a lottery ticket. The IAC made enquiries and came to the tentative conclusion that the lottery of Rs. 1,00,000 alleged to have been won by the petitioner was in fact not won by the petitioner. The IAC wrote a letter dated 23-3-1979 in which it was indicated as to what the enquiry which had been made revealed. A reply dated 26-3-1979 was received and thereafter the IAC regarded this amount of lottery as the income of the petitioner from undisclosed sources and completed the assessment. An appeal was filed which was rejected by the Commissioner (Appeals). Second appeal was filed to the Tribunal and the Tribunal also dismissed the appeal.

Thereafter the aforesaid questions were raised. The Tribunal came to the conclusion that all the aforesaid questions which were raised were questions of fact and no question of law arose. Before us also the learned counsel has reiterated the submission made before the Tribunal that the aforesaid questions should be referred. We have carefully gone through the record of the case and we find that the Tribunal has recorded a finding that the material which had been collected by the assessing authority was made available to the assessee. It was contended by Shri Dalip Singh that the statements which were recorded behind his back were never made available to the assessee at the time of assessment. Even assuming this to be so, vide letter dated 23-3-1979 the synopsis of the material which had been collected by the IAC was delivered to the assessee. According to the Tribunal, as well as according to the Commissioner the assessee did not ask for the opportunity to examine the person whose statement was recorded behind his back. The learned counsel states that in the letter dated 26-3-1979 the assessee did ask for the material on which reliance was placed. We find that the finding of fact recorded by the Tribunal is that the material on which reliance was placed was made available to the assessee. The Commissioner has also stated that ''enquiries made by the IAC from the Director of State Lotteries and even the ground on which the assessment was to be made was given out in this letter''. With regard to the validity of the order of assessment and the ITNS 150 as well as with regard to the validity of notices u/s 143(2) we agree with the conclusion of the Tribunal that the findings arrived at by the Tribunal in regard to the same were pure questions of fact and no question of law arises. The Tribunal has found that valid notices have been issued. All the questions which have been raised by the petitioner are questions of fact. We, accordingly, dismiss the petition.