JUDGMENT
Suhas Chandra Sen, J.
1. Following three questions of law have been referred by the Tribunal under Section 256(2) of the Income-tax Act, 1961, to this court:
“(i) Whether, on the facts and in the circumstances of the case, the Tribunal erred in allowing the assessee to rely on and in relying on the books of account of the assessee and the memo and voucher which were produced before the Tribunal for the first time ?
(ii) Whether, on the facts and in the circumstances of the case, the Tribunal relied on inadmissible evidence and did not take into consideration all relevant material and ignored relevant material and/or acted partly on irrelevant material in coming to the finding that there was, in fact, only one transaction of rupees four lakhs on October 30, 1950, and in deleting the sum of rupees four lakhs treated by the Income-tax Officer and the Appellate Assistant Commissioner as the assessee’s income from undisclosed sources and whether such finding is based on evidence which does not cover all the essential points and is contrary to and/or inconsistent with the material and evidence on record and is otherwise unreasonable and/or perverse ?
(iii) Whether, on the facts and in the circumstances of the case and on the material and evidence of the case before it, the Tribunal erred in allowing the appeal ?”
2. This reference relates to the assessment year 1951-52 for which the relevant accounting period ended on June 30, 1950.
3. The facts as stated in the statement of case by the Tribunal are as follows :
The dispute between the assessee and the Department was whether there were two transactions regarding disbursement of Rs. 4 lakhs or one transaction. According to the assessee, there was only one transaction of Rs. 4 lakhs while, according to the Department, there were two transactions, one of which was not accounted for in the assessee’s books of account. In order to appreciate better the rival stands, it would be necessary to state their respective cases.
4. According to the assessee, as it was carrying on business of purchasing raw jute from East Pakistan and manufacturing and selling jute goods, it had purchased jute worth Rs. 4 lakhs from Madaripur Trading Co. Ltd. which in its turn had purchased the same from Sarsabari Jute Trading Co. Ltd., East Pakistan. Firstly, Madaripur Trading Co. Ltd. paid Rs. 4 lakhs to Sarsabari Jute Trading Co. Ltd. and then the assessee reimbursed Madaripur Trading Co. Ltd. on October 30, 1950, in the following manner :
“Rs. 4 lakhs were sent to one Shri Shaligram Chowdhury of Bombay by telegraphic transfer on October 30, 1950, through Hindusthan Mercantile Bank. The said Shaligram Chowdhury in his turn paid over Rs. 4 lakhs to G. Yafi Sons of Bombay which in turn paid the said amount to Madari-pur Trading Co. Ltd. in cash.”
5. The assessee went up in appeal to the Tribunal, where the assessee took the following stand.
6. The learned representative for the assessee submitted that the income-tax authorities were not justified in coming to the conclusion that there were in fact two transactions of Rs. 4 lakhs and not one as contended by the assessee. It was further submitted that the Appellate Assistant Commissioner had clearly gone wrong in interpreting the entry made in the asses-see’s books of account on October 31, 1950. It was further submitted that if the said entries were to be read with the voucher as well as the memo dated October 30, 1950, it would be very clear that there was only one transaction of Rs. 4 lakhs on October 30, 1950, and not two as held by the income-tax authorities. In this connection, the representative of the assessee invited the attention of the Tribunal to the books of account maintained by the assessee as well as the original voucher and memo dated October 30, 1950. The Tribunal’s attention was also drawn to the assessment order as well as the appellate orders of the Appellate Assistant Commissioner and the case of Shri Shaligram Chowdhury, wherein the fact regarding the transaction of Rs. 4 lakhs had been fully discussed by various authorities. It was submitted that Rs. 4 lakhs sent to Shri Shaligram Chowdhury was assessed in his hands by the Income-tax Officer having jurisdiction over him, but in the appeal preferred by Shri Chowdhury, the Appellate Assistant Commissioner deleted the same after accepting the submissions made on behalf of Shri Chowdhury that the said amount was sent by Bengal Jute Mills Co. Ltd. for payment to Madaripur Trading Co. Ltd. in respect of raw jute purchased by the assessee from Sarsabari Jute Trading Co. The learned representative for the assessee was, however, fair enough to invite the Tribunal’s attention to its own order in respect of Shri Shaligram Chowdhury (I. T. A. No. 3540 of 1965-66) where in an appeal preferred by the Revenue against the order of the Appellate Assistant Commissioner deleting the sum of Rs. 4 lakhs, in which the Tribunal had set aside the order of the Appellate Assistant Commissioner and restored the case once more to his file with a direction to give his decision afresh after hearing both the parties, namely, the Income-tax Officer as well as Shri Chowdhury, inviting the attention of the Tribunal to the relevant extract from the order sheet of the Appellate Assistant Commissioner’s record, it was further submitted on behalf of the assessee that the Appellate Assistant Commissioner had given time to the assessee to produce the relevant books for his examination on June 25, 1974. On June 25, 1974, on
behalf of the assessee, the Appellate Assistant Commissioner was requested to give the assessee further time to bring the necessary books of account for examination thereof but the Appellate Assistant Commissioner rejected the prayer of the assessee and passed the order on the same day, confirming the action taken by the Income-tax Officer. It was also submitted that, under those circumstances, the relevant books of account as well as the voucher and the memo could not be produced before the Appellate Assistant Commissioner on June 25, 1974, who gave an adverse decision against the assessee on the basis of the findings of the Income-tax Officer. In these circumstances, it was submitted on behalf of the assessee that if the income-tax authorities had properly appreciated the entries made in the books of account of the assessee, there could have been no scope for the addition of Rs. 4 lakhs on the ground that there were two transactions and not one which took place on October 30, 1950. Finally, it was submitted that since the addition of Rs. 4 lakhs was made by the income-tax authorities on surmises and conjectures, the same could not be substantiated and should be deleted.
7. On behalf of the Revenue, it was submitted that since the books of account as well as vouchers and memo on which the assessee then wanted to rely, were not produced before the income-tax authorities in spite of giving sufficient time to the assessee, the Tribunal should not take notice of them in deciding the appeal and the learned Departmental representative supported the action of the income-tax authorities.
8. It appears that the Tribunal has examined the evidence afresh or new evidence which was not there before the Appellate Assistant Commissioner. The Tribunal in its order has given sufficient reasons for examining the new evidence. It was found by the Tribunal that the evidence was unavailable to the assessee at the relevant time because of the assessment proceedings in respect of Shri Shaligram Chowdhury, which had been going on in Bombay and that is why the relevant books of account, vouchers and memos could not be produced at the relevant time fixed by the Appellate Assistant Commissioner, that is, on June 25, 1974, although the assessee prayed for extension of time for production of the same, but the said prayer was rejected by the Appellate Assistant Commissioner. Therefore, on appraisal of the evidence produced before it, the Tribunal has come to a decision in this case and held :
“As we are fully satisfied with the evidence produced on behalf of the assessee that there was, in fact, only one transaction of Rs. 4 lakhs on October 30, 1950, we delete the sum of Rs. 4 lakhs treated by the income-tax authorities as the assessee’s income from ‘undisclosed sources’ “. This finding is essentially a finding of fact. All the relevant evidence was considered and some new evidence was taken on the grounds stated in the
order of the Tribunal We do not find any infirmity of law committed by the Tribunal. No relevant fact was excluded and no irrelevant fact or evidence was taken into consideration. There were materials on the basis of which the Tribunal could have come to the findings.
9. Under the circumstances, question No. 1 is answered in the negative and in favour of the assessee. Question No. 2 is also answered in the negative and in favour of the assessee. Question No. 3 is also answered in the negative and in favour of the assessee.
10. There will be no order as to costs.
Bhagabati Prosad Banerjee J.
11. I agree.