Shri Kanhaiyalal Lohia Vs. The
Commissioner of Income-Tax, West Bengal  INSC 225 (17 July 1961)
CITATION: 1962 AIR 1323 1962 SCR (2) 839
CITATOR INFO :
F 1962 SC1326 (5) F 1962 SC1621 (115) RF 1963
SC 835 (2)
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 of 1922), ss. 66(1), 66(2)
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 riot bonafide and he assessed, the
income of all the businesses in the hands of the appellant. The appellant had
produced 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 counsel and at his request M. was summoned for cross-examination
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 refer the other questions. In the High Court the question
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. The
appellant did not appeal against these two orders of the High Court and instead
filed appeals against the orders of the Tribunal.
The appellant relied upon two cases of this
Dhakeshwari Colton Hills' Case and Baldev
Singh's case and contended that tile appeal to this court was competent.
Held, that the appeals were incompetent in
view of the decisions of this Court in Chandi Prasad Chokhani v. State of Bihar
and The Indian Aluminium Co., Ltd.
840 Held. further, that an appeal against an
order of the High Court deciding a question referred or against a 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 High Court decides the question referred,
and under Art. 136 of the Constitution if the High Court refuses to call for a
statement. There can be no direct appeal to the Supreme Court by passing the
decisions of the High Court.
Held,. also, that there was neither any
breach of the principles of natural justice in this case nor the existence of
circumstances as existed in Baldev Singh's case to justify the appeal.
Held, that where a witness has been examined
by the Income- tax Officer behind the back of the assessee but a copy of the
statement of the witness is made available, to the assessee and an opportunity
is given to him to cross-examine the witness, thereis no breach of the
principle of natural justice.
ChandiPrasad Chokhani v. State of Bihar.
(1962) 2 S.C.R.
276and Indian Aluminium Co., Ltd., v.
Commissioner of Income-tax. (Civil Appeal No. 176 of 1959, decided on April 24,
Dhakeshwari Cotton Mills Ltd. v. Commissioner
of Income. tax (1955) 1 S.C.R. 941 and Sardar Baldev Singh v. Commissioner of
Income-tax, Delhi and Ajmer. (1961) 1 S.C.R. 482, explained. ,
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 347 to 350 of 1960.
Appeals by special leave from the judgment
and order dated January 18, 1953, of the Incometax Appellate Tribunal, Calcutta
Bench, in Incometax , Appeals Nos. 7062-7064 and C.P.T.A. No. 548 of 1951-52.
N.C. Chatterjee, A. V. Viswanatha Sastri and
D.N. Mukherjee, for the appellants.
K.N. Rajagopal Sastri, and D. Gupta, for
1961. July 17. The Judgment of the Court. was
delivered by HIDAYATULLAH, J.-These appeals with special leave, were filed by
one Kanhaiyalal Lohia, who died during the pendency of the appeals, and who 841
is now represented by the executors appointed under his will. By these appeals,
which are consolidated, the appellants question an order dated January 8, 1953,
of the Income-tax Appellate Tribunal (Calcutta Bench) in appeals filed by the
Department against the order of the Appellate Assistant Commissioner. The
Tribunal reversed the order of the Appellate Assistant Commissioner and
restored that of the Income-tax Officer. Kanbaiyalal Lohia made petitions under
s. 66 (1) to the Tribunal, setting out a number of questions of which the
following was I referred to the High Court :
"Whether in the circumstances of this
case where the Income-tax Officer, District III (2), separately assessed the
business run in the name of Brijlal Nandkishore as belonging to a partnership
firm consisting of Brijlal and Nandkishore, the Income-tax Officer, Non-
Companies E. P. T., District can assess the income from the same business in
the hands of the assessee ?" 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 questions, 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 Chandi Prasad Chokhani v. State of Bihar (1) and Indian Aluminium Co. Ltd.
v. Commissioner of Income-tax (2), these appeals were maintainable, if the two
decisions of the High Court had become final. Mr. A. V. Viswanatha Sastri
relied upon the decisions in (1) (1962) 2 S.C.R. 276.
(2) Civil Appeal No. 176 of 1959 decided on
April 24, 1961.
842 Dhakeswari Cotton Mills Ltd. v.
Commissioner of Income-tax West Bengal (1) and Sardar Baldev Singh v.
Commissioner of Income-tax Delhi and Ajmer (2), and pointed out that in those
cases, appeals were entertained from the Tribunal's order, though he conceded
with his usual frankness that special 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 unless special circumstances exist,
the appeals must be regarded as not competent, in view of our recent rulings
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,
Nandkishore Lohia. The properties of Kanhaiyalal Lohia were self-acquired, and
he was always assessed as an individual. He maintained accounts according to
the Ramaswami year. In his return for the account year, April 14, 1943 to April
1, 1944 corresponding to the assessment year, 1944-45), 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. 5,1 1, 1. 01 on July. 12, 1943, and to his nephew, Rs. 2,50,000 on
September 30, 1943.
He showed income of his East Bengal business
only up to the closure of that business.
Brijlal and Nandkishore entered into
partnership 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 members of the Baled Jute Association, and the Jute
,Baler,sAssociation, 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) 1 S.C.R. 482.
843 was within the jurisdiction of the same
In the assessment of the partnership firm,
notices were issued to the partnership both under s. 22(2) and s. 34, and the partnership
also applied for registration under s. 26A of the Income-tax Act,which was
granted. The partnership 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 cum 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 Nandkhore" and evidence showing the membership of
"Brijlal Nandkishore" of the two Associations. He also produced
letters from four persons including one Sri A.L. Mazumdar who was questioned by
the Income-tax Officer without notice to' Kanhaiyalal Lohia and whose statement
was also recorded.
Kanhaiyalal Lohia objected to this procedure,
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 bonafide, and were colourable transactions.
He relied upon the statement of Sri A. L.
Mazumdar, which was recorded when Kanhaiyalal Lohia was not present.
Against the assessment, Kanhaiyalal Lohia,
appealed to the Appellate Assistant Commissioner before whom two more letters
from leading businessmen were filed. The Appellate Assistant Commissioner
accepted the letters which were filed, and held that the gifts were proved and
were bona fide and directed the exclusion 844 of the income of "Brijlal
Nand kishore" from the assessment of Kanhaiyalal Lohia. The order of the
Appellate Assistant Commissioner was pronounced on December 27, 1951. The
Department appealed to the Appellate Income-tax Tribunal, Calcutta Bench. The
Tribunal disagreed with the Appellate Assistant Commissioner, all 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 already,.
applications under s. 66 (1) and s. 66 (2)
were made to the Tribunal and the High Court respectively. The Tribunal
referred one question, but declinedto refer them. other quest-ions. The High
Court then moved under s. 66 (2) but without success. The High Court agreed
with 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 the Court to answer the referred question
against the, Department, and it appears that it was conceded by the Department
before the High Court that the assessment of "Brijlal Nandkishore"
would be cancelled. Kanhaiyalal Lohia then filed the present appeals against
the order of the Tribunal dated January 8, 1953.
This Court has pointed out in Chandi Prasad,
Chokhani v. State of Bihar(1) and Indian Aluminium Co., Ltd. v. Commissioner of
Income-tax (2) that the two cases in which this Court interfered with appellate
orders of a Tribunal and relied upon before us, were of a special kind. In
Dhakheshwari Cotton Mills case(3) there was a breach of the principle, of
natural justice, and that was held sufficient to entitle an aggrieved party to
come to this Court against the appellate order of the Tribunal under Art. 136.
In (1) (1962) 2 S.C.R. 276.
(2)Civil Appeal No. 176 of 1959 decided on
April 24, 1961.
(3) (1955) 1 S.C.R. 941.
845 Baldev Singh's case (1) this Court
entertained an appeal against the appellate order of the Tribunal, because
limitation to take other remedies was IS barred without an fault of the
assessee concerned. The ratio in each of these cases is that a circumstance
which cannot be corrected by the procedure of a stated question of law on a
statement of the case may afford a ground for invoking the jurisdiction of
Court under Art. 136. That ratio does not apply, where a question of law can be
raised, and is capable of being answered by the High Court or on appeal by this
Court. An appeal against an order of the High Court deciding a question
referred or against a refusal to call for a statement can be brought before
this Court under s. 66A, if the High Court decides the question referred and
136, if the High Court refuses to call for a
In the present case, the order of the High
Court on the question referred was not brought before this Court by the
ordinary, mode indicated in the Indian Income-tax Act, presumably because of
the concession of counsel that he could not claim that the question be answered
in favour of the assessee and the attitude of the Department that the
assessment of "Brijlal Nandkishore" would be cancelled. The order
refusing to call for a statement on questions other than the one referred is
also not questioned before us. The attempt is to bring this case within the
ratio of Dhakeshwari Cotton Mills' case(2),and in support, it has been pointed
out mainly that the examination of Sri A. L. Mazumdar in the absence of
Kanhaiyalal Lohia was against the principles of natural justice. The statement
of Sri A. L. Mazumdar was taken on March 28, 1950, and it is recorded as
"Mr. Mazumdar is questioned by me as to
what be knows regarding the alleged gift as recorded in the books of
Kanhaiyalal Lohia in favour of Brijlal and Nand Kishore. He says (1) (1961) 1
S.C.R, 482. (2) (1955) 1 S.C.R. 941.
846 that I don't remember things very
distinctly but 1 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 partnership deed was most probably drawn
up by me. The gift, was reported to have been made to Brij Lal and Nand Kishore
before I should have taken up the drafting of the deed.
Kanhaiyalal told me several times that he
wanted to separate his brother and nephew.
When the firm was started then 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
Mazumdar to the statement of Kanhaiyalal Lohia has affect his credibility. The
order 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 appear. It is impossible to think in these circumstances
that there has been any breach of the principles 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 Cotton Mills
case It was contended before us that the finding of the Tribunal was perverse,
and that on an examination 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.
847 the Appellate Tribunal as the final
The Tribunal acted within its powers in
refusing to accept the evidence tendered, and looking 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. Suddenly 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 circumstance, 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 auspicious. 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 decision 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 (1) and Indian Aluminium Co., Ltd. v. Commissioner of Income-
tax(2), and must be regarded as incompetent.
The appeals are dismissed with costs, one
(1) (1962) 2 S.C.R. 276.