SHRI KANHAIYALAL LOHIA versus THE COMMISSIONER OF INCOME-TAX, WEST BENGAL

2 S.C.R. SUPREME COURT REPORTS

839

SHRI KANHAIYALAL LOHIA

v.

1961

July, 17.

THE COMMISSIONER OF INCOME-TAX, WEST BENGAL

(S. K. Das, M. HIDAYATULLAH and J.C. SHAH, JJ.) Income-Tax-Appeal from High Court's order-Procedure Appeal from order of the Tribunal by,passing High Court's order Appeal if competent-Income-tax Act, 1922(11 ~f 1922), 88. 66(1), 66(2) and 66(a).

The appellant supported his brother and his nephew for a number of years as they were doing no work. In the year 1943 he made a gift of Rs. 7,60,000 odd to them though he had to overdraw his account with the Bank and to pay interest or the amount borrowed to raise the money. He also made a transfer of some of his businesses to them. His explanation was that these gifts were made to set these two persons up in business. The Income-tax Officer held that the gifts were not bonafide and he assessed the income of all the businesses in The appellant had produced the hands. of the appellant. letters from some businessmen in support of his case. One such person was one M. who was examined by the Income-tax Officer without notice to the appellant. Later, however, a copy of the statement of M. was taken by the appellant's coun sel and at his request M. was summoned for cross-e~amination but on the date fixed none appeared for the appellant who was also absent.

The appellant made a petition under s. 66(1) of the Income-tax Act to the Tribunal asking that a number of questions of law be referred to the High Court. Only one question was referred by the Tribunal which declined to In the High Court the question refer the other questions. referred by the Tribunal was answered against the appellant on the admission of his counsel. The High Court was moved also under s. 66(2) to order a reference of the remaining questions but the High Court rejected the application, l"he appellant did not appeal against these two orders of the High Court and instead tiled appeals against the orders of the Tribunal. The appellant relied upon two cases of this Court viz. Dhakeshwari Cotton Mills' Gase and Balaev Singh'• case and contended that the appeal to this court was competent.

Held, that the appeals were incompetent in view of the decisions of this Court in Ol.'andi Prasad Ohokhani v. State <1f Bihar and The Indian Aluminium Go., Ltd.

'

1961

Sh. Kanhaiyalal Lohia v. TM, Commissioner of Income-tax, West Bengal.

Slif'REl\IE f'OlTRT REPOltT8

[1962)

.

!hid. further, that an appeal agaimt an order of the ll1gh Court deciding a question reli:rred nr ar,ainst ,1 refusal to call for a statement can only be brought_ before the Supreme Court under s. 66(A) of the Income-tax Act if the Hiah Court decides the question referred, and uncle; Art. 136 °0 f the Constitution if the High Court refuses to call for a state- ment. There can be no direct appea: to the S11p1eme Court by passmg the decisions of the High Court.

Hehl. aho, that there was neither anv breach of the principles ~f natural justice in th is case no; the existence o circumstances as rxis.ted in Baldr1: Singh.' . ., case to ju~tify the •ppeal.

Held, that where a witness hag been exarmned by the Income-'"'' Ofhcer behmd the back of the assessee but a copy of the statement of the witness is made available, lo the asscsseo and an opportunity is given to him to cross·,xamine the witne«, there is no breach of the principle of natural justice.

rJlwndi Pmsad Chokltani v. State of Bihar. (1962) Indian Aluminium Co., Ltd., v. Commis (Ci1:il Appeal No. 171i of 19511, der.ided

~ S.C.R. 276 and "ioner 1.f Income-tax. ""April 24, /91ilj followed.

Dhakeshwari Cotwn Milk Ltd. v. Commissioner of Income tax (1955) i S.C.R. 941 and Sardar Baldev Singh v. Commis sumer of Income-tax, Delhi and Ajmer. (1961) 1 S.C.R. 482, explained.

C1VIL APPELLATE

.J t'IH8Dif"l'lO:N

: Civil Appeals

NoH. 347 to 350 of HJ(lO.

Appeals Ly 8\WOial leave· from

the judgment and order dated .January 18, 1953, of the fncome- tax Appellate Tribun~l:., ~lcutta Bench, in h1cm!ie- tax Appeals NoH. 7062-1064 and C.P.T.A. No. '148 of 1951-52.

!'i. C. Chatterj6e, A. r. l"·ioimuatha Saotri and

/J . .V. iJ:lukherjee, for ihe appcllantH.

I{. N. Rr~j1Jyop1tl

!·h~tri :iml I I. r htpl1', for

ITtipoudP rit .. 1961. was delivered by

July 1 i. The Judgment of the Court

M. H idriyatulkth .T.

HIJJAYATULLAH, J.--These appeals with special leave were filed by one Kanhaiyalal Lohia, who died during the pendency of the appeals, and who

•

'

1961

Sh, Kanhaiyalal Lohia v. l'he Commissioner of I ncome-kix: !Vest Bengal.

Hidayatullah J

2 S.C.R. SUl'HEME OOURT REPORTS

841

appeals, whic11

is now represented by the executors appointed under his will. By these al'!' consolidated, the appellants q1kHtion au order dated Jauuary 8, 1953, of the Ineome-tax Appellate Tribuual (Calcutta Beneh) in appeals filed by the Department. against the order of the Appellate reversed Assistant Commissioner. The Tribunal the order of the Appellate Assistant Oornmissioner Income-tax Officer. and restored Kanhaiyalal Lohia made Jlctitions under '· 66 (1) to the TribuI?-al, setting out a numbc•r rif yl!estions of which the following was referred h.1 th" High Court :

that of the

"Whether in the cirumstances of this case where the Income- tax Offi1·pr, Distrir-t III (2), separately assessed the busiJ1ess run in the name of Brijlal Nandkishore as belong ing to a partnership firm consisting of Brijlal and Nandkishore, the Income-tax Officer, Non-Companies E. P. T., District can assess the Harne busiuess in the the income from hands of the assPssee ?"

This question was answered against him. Kanhaiyalal Lohia also applied under s. 66 (2) to the High Court of Calcutta for reference of the other ques tions, but failed. No appeal has been filed by him against the order of the High Court refusing to direct the Tribunal to state a case or against the decision on the question referred, and the present appeals have been filed against the decision of the Tribunal.

At the hearing of these appeals, we asked counsel for the appellants how, in view of the recent decisions of this Court in Okandi Prasad Okokhani v. State of Bikar (1) and Indian Aluminium ), these Oo. Ltd. Y. Oommi88ioner of Income-tax (2 appeals were maintainable, if the two decisions of final. Mr. A. V. the High Court had become Viswanatha Sastri relied upon the decisions in (I) ( 1962) 2 S.C.R. 27G. (2) Civil Appeal No. I 76 nf I Y.i'l r!ecidrrl on April 24, 1961.

1961

Sh. Kanhaiyalal Lohia v. The Oommis.Wnner of I ncome-taz, West Benval.

Hidayatullah J.

842

SUPREME COURT REPORTS

[1962]

Dhakeswari Cotton Mills Ltd. v. Commissioner of In come-tax, West Ilengal (1) and Sardar Baldev Singh v. Commissioner of Income-tax Delhi and Ajmer (2}, and pointed out that in those cases, appeals wNe enter tained from the Tribunal's order, though he conceded with his usual frankness that spceial circumstances must exist. He contended that this was a case in which such circumstances existed. We shall deal with the appeals from that point of view, because unles special circumstances exist, the appeals must be regarded as not competent, in view of our recent rulings above mentioned.

Kanhaiyalal Lohia, who was a prosperous dealer in jute, had his head office in Calcutta. He had no issue, and his family consisted of his wife, his brother, Brijlal Lohia and Brijlal's son, Nand kishore Lohia. The properties of Kanhaiyalal Lohia were self-acquired, and he was always assessed as an individual. He maintained .accounts according to the Ramnavami year. In his retu,rn for the account year, April 14, 1943 to April 1, 1944 the asse•ment year, \944-45), (corresponding to he indicated that he had closed down in the middle of 1943 his purchasing centres in East Bengal, which stood in the name of Nandkishore, and that, he had gifted to his brother Rs. 5,11,101 on July 12, 1943, and to his nephew, Rs. 2,50,000 on Septem ber 30, 1943. He showed income of his East Ben gal business only up to the closure of that business.

Brijlal and Nandkishore entered into partner ship between themselves, and started a business under the name and style of "Brijlal Nandkishore." They took over the purchasing centres in East Bengal. They opened accounts in banks in the name of "Brijlal Nandkishore", and became mem bers of the Baled .Jute Association, and the Jute Balers Association, and traded in their own names. A deed of partnership between them was also executed on August 5, 1953. The business of .Kanhaiyalal Lohia and of "Brijlal Nandkishore"

(1) (1955) 1 S.C.R. 941.

(2) (1961) I S.C.R. 482.

1961

Sh. Kanlmi11alal Lohia v. The Oommm-ioner of Incometao: West Be.ngal

Hidayatullah J.

2 S.C.R. SUPREME COURT REPORTS

843

was within the jurisdiction of the same Income In the assessment of the partner tax Officer. ship firm, notices were issued to the partner ship both under s. 22(2) and s. 34, and the partner ship also applied for registration under s. 26A of the Income-tax Act, which was granted. The partner ship was also assessed for the years, 1945-46 and 1946-47. The assessment of Kanhaiyalal Lohia was completed by the Income-tax Officer, Non Companies Income-Tax cnm Excess Profits Tax District, and during the assessment for the year, 1945-46 a notice was issued under s. 22(4) of the Income-Tax Act on August 24, 1949, calling for accounts of the head office at Calcutta and also the branches including the business being carried on as "Brijlal Nandkishore", Kanhaiylal Lohia proved the above facts, producing the books of account, bank statements, registration certificate of "Brijlal Nandkishore" and evidence showing the member ship of "Brijlal Nandkishore" of the two Associa tions. He also produced letters from four persons incl11ding one Sri A.L. Mazumdar who was question ed by the Income-tax Officer without notice to Kanhaiyalal Lohia and whose statement was also recorded. Kanhaiyalal Lohia objected to this pro cedure, but the Income-tax Officer, it is alleged, paid no heed to his protests, and on March 31, 1950 the assessment was completed, and the income of the branches under the direct control of "Brijlal Nandkishore" was pooled with the income of Kanhaiyalal Lohia. The Income-tax Officer held that the gifts were not bona fide, and were coloura ble transactions. He relied upon the statement of Sri A. L. l\fazumdar, which was recorded when Kanhaiyalal Lohia was not present.

Against the assessment, Kanhaiya.lal L0hia, appealed to the Appellate Assistant Commissioner before whom two more letters from leading business men were filed. The Appellate Assistant Com missoner letters which were the the gifts were proved filed, and held and were bona fide and directed the exclusion

accepted

that

1961

Sh. Kanhaiyalal Loki a v. The Commissioner of Income-tax West Bengal

Hidayatu llak J.

844

SUPREME COURT REPORTS

[1962)

income of "Brijlal Nand kishore" from of the The the assessment of Kanhaiyalal Lohia. order of the Appellate Assistant Commissioner was pronounced on December 27, 1951. The Dep<irt ment appealed to the Appellate Income-tax Tri- . bunal, Calcutta Bench. The Tribunal disagrlled with the Appellate Assistant Commissioner, and held on January 8, 1953, that the gifts were not proved by the assessee by unimpeachable evidence, and that the income of "Brijilal Nandkishore'' was rightly included in the assessment. As stated al ready, applications under s. 66 (1) ands. 66 (2) were respec made to the Tribunal and the High Court tively. The Tribunal referred one question, but declined to refer the other questions. The High Court was then mov2d under s. 66 (2) but without suecess. The High Court agreed witli the Tribunal and answered the question which was referred, against Kanhaiyalal Lohia. Before the High Court, Kanhaiyalal's counsel, Dr. Pal, admitted that he could not persuade t.he Court to answer the referred question against the Department, and it appears that it was conceded by the Department the High Court that the assessment of before "Brijlal Nandkishore" would be cancelled. Kan haiyalal Lohia then filed the present appeals against the order of the Tribunal dated January 8, 1953.

This Court has pointed out in Chandi Prasad Cho1chan·i v. State of Bihar(1) and Indian Al,uminium Co., Ltd. v. Commissioner of Income-tax(') that the two casiS in which this Court int.erfered with appel late orders of a Tribunal and relied upon before us, were of a special kind. In Dha1cheshwari Cotton 211 ills case(') there was a breach of the princ~ple of natural justice, and that was held ~ufficient to e1,1title an aO'arieved party to come to this Court aga10st the In appellate order of the Tribunal under Art. 136.

(1) (1962) 2 S.C.R. 276. (2) Civil Appeal No. 176 of 1959 decided on April 24,

1961.

(3) (1-955) 1 s.c.R. 911.

1961

Sh. Kanhaiyalal l'ohia v. 1'h<- Oom1n.i~si.one>· of Inco~-:ta;·, W-.1. Bcngn/

Hidayatullah J.

2 S.C.R.

SUPREME COURT REPDR1'N

84-5

Baldev Singh 's case (') this Court. entertained an appeal against the·appellate order of the Tribunal, because limitation to take other remedies was barred without any fault of the assessee eoncerned. The ratio in each of these cases is that a circnm· stance which cannot be corrected by t)w procedure of a statecl queRtion of la.won a statement. of the· case may afford a ground for invoking the jurisdic tion of Court ·under Art: 136. That ratio does not apply, where a question of law can bE;l" raised, and is capable of being answered by the High Court or on appeal, by this Cburt. An appeal against an order of the High Court deciding a question referred or against a refusa-1 to call for a statonrent. can ho brought before this Court under s. 66A, if the High t.he question referred and {mder if the High Court refuses to call for a

- Court decides

Art. 136, statement.

In the present case, the order of the High Court on tbe question referred' was not brought before this Court by the ordinary mode indicl:lted in tho Indian Income-tax Acf,--pre.surnably oecause of the concession of counsel that hC\ could not elaim that the question he answered· in favour of the assessee and the attitude of the Departmen,t that tho assessment of "Brijlal Nandkislrnre" would be cancelled. The order refusing to call for a state ment on questions other than the one referred is als9 not questioned before us. The attempt is to the rati.o of Dliakesliuwi bring this case within Cotton 21Iills' oase(2),and in support, it has been point. ed out mainly that the examination of Sri A. L. Maz11mdar in the absence of Kanhaiyalal Lohia was against the principles of natural iv.stice. The statement of Sri A. L. Mazumdar was taken on March 28, 1950, and it,is recorded as follows:

"Mr. Mazumdar is questioned b.Y me as to what be knows reg~rding the alleged gift as recorded in the bopks of Kanhailyalal Lohia in favour of Brijlal and Nand Kiahore. He says

'

(I) (1961) I s.c.R. 482.

(2) (1955) I s.c.R. 941.

l_~

1961

811. Kanhaiyala

Lohia v. The Oommi&ioner of I noometax, Wesl Bengal

H idayatullah J.

846

SUPREME COURT REPORTS

(1962]

that I don't remember things very distinctly but I can say that the gifts to Brij Lal or Nand Kishore were not made in my presence as alleged. Mr. Kanhaiyalal Lohia used to tell me that his brother and nephew are idling away their time hence I shall give them a gift and make them work by that money.

The patnership deed was most probably drawn up by me. The gift was reported to have been made to Brij Lal and NandKishore before I should have taken up the drafting of the deed. Kanhaiyalal told me several times that he wanted to separate his brother and firm was started then nephew. When the Brijlal came to me and asked me if father and son's partnership deed could be drawn up.

I don't know anything else than this in

the matter." The lie given by Sri Ma:i:umdar to the state ment of Kanhaiyalal Lohia has affected his credi bility. The ord(fr sheet shows that Mr. B. Sen Gupta took a copy of Sri Mazumdar's statement and expressed a desire to cross-examine him; but when the opportunity was given, he failed to ap pear. It is impossible to think in these circum stances that there has been any breach of the princi ples of natural justice. The order sheets of March 29 and 30, 1950 clearly record the absence of Mr. B. Sen Gupta .. In our opinion, there is no breach of the principles of natural justice in this case to entitle the appellants to invoke the ruling in Dhakeshwari Cotwn Mills case('}.

It was contended before us that the finding of the Tribunal was perverse, and that, on an exami nation of the total circumstances, it is quite clear that the gifts were not only real, but were acted upon. This was a matter within the jurisdiction of (1) (1955) 1 S.C.R. 941.

.1961

Sh. Kanhaiyalal Lohia v. The Oomrnissioner of I ncorne-tax, West Bengal

Hidayatutlah J.

2 S.C.R. SUPREME COURT REPORTS

847

the Appellate Tribunal as the final fact-finding authority. The Tribunal acted within its powers in refusing to accept the evidence tendernd, and look ing at the circumstances of the case, we cannot say that the finding has . been perversely reached. For a number of years, the brother and the nephew were supported by Kanhaiyalal Lohia, and it does not appear that a gift of even a small sum was made to them to put them on their legs. Sudden ly in the year 1943, Kanhaiyalal Lohia made up his mind to put them in business with a gift of the order of Rs. 7,60,000 odd. For this purpose, he had to overdraw his accounts with the Bank and to pay interest to the Bank. It does not appear why he felt that the establishment of his brother and nephew in business should be made on such a grand scale, which involved him in debt. This cir cumstance, taken with the fact that Mr. Mazumdar stated that he had always complained that they were good for nothing and were idlers, makes the transactions suspicious. It was presumably done with a view to reduce the assessable profits in the hands of Kanhaiyalal Lohia, and on the evidence, the Tribunal was entitled to hold, as it did, that this was a sham transaction. In our opinion, no special circumstances exist, on which the appellants can claim to come to this Court against the deci sion of the Tribunal, by passing the decision of the of High Court on the question referred and there fusal the High Court to call for a statement of the case from the Tribunal on questions which the Tribunal refused to refer to the High Court. The appeals are, therefore, within the rulings of this Court in Chandi Prasad Chokhani v. State of Bihar (') and Indian Aluminium Co., Ltd. v. Commissioner of income-tax('), and must be regarded as incompetent. The appeals are dismissed with costs, one set.

(1962) 2 S.C.R. 276.

(I) (2) Civil Appeal No. 176 of 1959 decided on April 24, 1961

Appeal dismissed.