T. Govindankutty Menon vs Commissioner of Income Tax

K.S. Paripoornan, J.—At the instance of the assessee and as directed by this court in Original Petition No. 6578 of 1982, the Income Tax Appellate Tribunal has referred the following question of law for the decision of this court :

"Should not the Tribunal have held that Section 68 can apply only if the cash credits are found in the books of the applicant himself and not in the books of the firm of which he was only a partner ?"

The petitioner is an assessee to Income Tax. The matter relates to the year 1975-76. The respondent is the Revenue. There were huge additions to the income returned by the assessee/petitioner under the head "Other sources". The Appellate Tribunal, by its order dated September 30, 1981, sustained the addition to the extent of Rs. 85,000. Though the petitioner/ assessee filed an application to refer a question of law which, according to him, arose out of the order of the Appellate Tribunal, the Appellate Tribunal declined the request. Thereafter, the assessee moved this court in 0. P. No. 6578 of 1982 and this court, by judgment dated December 3, 1984, directed the Income Tax Appellate Tribunal to refer the question of law formulated hereinabove for the decision of this court Accordingly, the Tribunal has referred the above question of law for the decision of this court.

We heard counsel. On a bare perusal of the statement of the case, it is seen that the question as to whether Section 68 of the Income Tax Act can apply only if the cash credits are found in the books of the assessee himself and not in the books of the firm of which he was only a partner, was not raised before the Tribunal and was not considered by it. Para 4 of the statement of the case dated April 29, 1985, makes this position clear. If the said question was not raised nor argued nor considered by the Appellate Tribunal, it cannot be said that the question now referred by the Appellate Tribunal is one which arises out of the order of the Tribunal. Even if this court has directed the Appellate Tribunal to refer such a question, this court is not bound to answer the said question when it finally, comes up for decision. (See Commissioner of Income Tax, West Bengal, Calcutta Vs. Smt. Anusuya Devi, ).

In the light of the categoric finding in the statement of the case, we hold that the question referred to us by the Appellate Tribunal does not arise out of the order of the Appellate Tribunal. So, we decline to answer the question referred to us.

A copy of this judgment, under the seal of this court and the signature of the Registrar, shall be forwarded to the Income Tax Appellate Tribunal, Cochin Bench.