M.B. ABDULLA v. COMMISSIONER OF INCOME-TAX, KERALA "'"tr

The Judgment of the Court was delivered by

SABY ASACHI MUKHAR.11, CJ. This is a petition under artide G 136 of the Constitution for leave to appeal against the orders of the tribunal and the High Court. The High Court vide its order dated 31st January, 1989 had dismissed the application for reference. There is . also an order of the tribunal refusing to make a reference under section 256(1) of the Income Tax Act, 1961 (hereinafter called 'the Act'). This petition also seeks leave to appeal directly from the said order of the tribunal.

M.B. ABDULLA v. C.I.T. [MUKI!ARJI, CJ.] 7

However, in order to appreciate the controversy in this case the facts reiterated by the High Cpurt of Kerala in its said judgment and order are important, it had observed as follows:

"For the assessment year 1969-70 the petitioner· filed a return declaring a total income of Rs.9,571. In cbrnpleting the assessment the assessing authority proceeded on the basis that the assessee was the owner of the gold seized on 9.11.68 and confiscated by the Customs authorities worth I . Rs.20 lakhs and accordingly the Income-tax Officer treated ·.,. the sum of Rs.20 lakhs as income from undisclosed source applying the provisions of Section 69-A of the Income-tax Act, 1961. On appeal, the Appellate Assistant Commis- sioner held that the assessee was not the owner of the c contraband gold seized by the Central Excise Authority and therefore reduced the. assessee's total income by Rs.20 lakhs. The Revenue filed a second appeal before the Appellate Tribunal, Cochin Bench. After going through the evidence the Tribunal came to the conclusion that the car belonged to the assessee and the special places of con- cealment had been provided by design in the car. Further the assessee himself was driving the car in which the gold was found. The assessee also has not attributed the owner- ship to anybody else. The assesee also has not established that the gold was given to him by any third party. In view of all these, the addition of Rs.20 lakhs made by the Income- tax Officer but deleted by the Appellate Asst!. Commis- sioner was restored. The additional ground raised by the Revenue that the appeal is not maintainable before the Appellate Asstt. Commissioner was rejected. The assessee thereafter filc<1 a Miscellaneous Petition for rectification of the order of the Tribunal. The rectification sought to be made are:-

(1) Business loss to-the tune of Rs.20,00,000 incurred by the assessee due to investment in gold and the confiscation

-· of the gold by the Customs authorities be allowed for the assessment year 1969-70, in view of the decision of the Supreme Court in CITv. Piara Singh, decided on 8-5-1980 and reported in 124 ITR 40, G

(2) the income tax and special surcharge amounting to Rs.16, 19,395, Rs.20,00,000 and H

8 SUPREME COURT REPORTS [1990] 2 S.C.R.

A (3) as the tax has already been collected from the amount of Rs.20,00,000 no interest was payable."

The High Court noted that the tribunal could not accede to the requests of the petitioner as these could not be considered as mistakes apparent from records. The points had not been raised by way of B cross-appeal or cross-objections. Thereafter, the assessee filed a peti- tion u/s 256 of the Act seeking reference of the following questions of law:

"1. Whether the Tribunal is right in law in its view that the right to file an application under Section 254(2) of the • Income-tax Act, 1961 is open to be exercised only by the c applicant and not by the respondent in the appeal before it?

2Copy pinpoint2. Whether the Tribunal is right in law in rejecting the application under Section 254(2) on the ground that the D . applicant was not the appellant before it and that he had also not filed any memo of Cross-objections in the appeal against him?

3Copy pinpoint3. Whether on the facts and in the circumstances of the case the assessee was bound to raise before the Tribunal, at E the stage when he was only supporting the order appealed against him, of his case for deduction which he was legally entitled to claim in case of allowance of the appeal against him?

4Copy pinpoint4. Whether on facts and circumstances of the case the F Tribunal was right in law in holding that the claim of loss on account of confiscation of the gold was not the subject matter of the appeal?" ·

The tribunal dismissed the petition holding that none of the questions sought to be raised was decided by the tribunal and as such G . did not arise out of the order of the tribunal. Aggrieved by these two orders, one being refusal by the tribunal to refer the question as aforesaid u/s 256( 1) and the other of the High Court directing the tribunal ,to refer the questions and state the case to the High Court, the · -r' petitioner has come up to this Court. We find that it can legitimately be argued in the facts and the circumstances of the case that the ques- H tion which essentially arose, which had to be borne in mind and which

M.B. ABDULLA v. C.l.T. [MUKHARJI, CJ.] 9

was argued before the tribunal was, whether the sum of Rs.20 lakhs A could be subject to taxation in the context as found by the trjbunal as the income of the assessee. The assessee's further contention was that in view of the decision of this Court in C.I. T. Patiala v. Piara Singh, 125 ITR 40 even if Rs.20 lakhs could be treated as the income of t\le assessee inasmuch as this has been ordered to be confiscated, there was a business loss as held in the said decision of this Court. Therefore, B this question should have been gone into which was sought to be raised by a Miscellaneous Application before the tribunal after disposal of ..,..r the appeal by the tribunal.

The principle by which this should be determined has been fairly laid down b_y this Court in C.J. T., Bombay v. Scindia Steam Naviga- tiim Co. Ltd., (1961) 42 ITR 589 wherein this Court at page 612 had c observed as follows:

10 SUPREME COURT REPORTS [1990] 2 S.C.R.

It is argued for the appellant that this view would have the effect of doing away with limitations which the Legislature has advisedly imposed on the right of a litigant to require references under section 66(I), as the question might be framed in such general manner as to admit of new questions not argued being raised. It is no doubt true·that sometimes the questions are framed In such general terms that, construed literally, they might take in questions which were never in issue. In such cases, the true scope of the reference will have to be ascertained and limited by what appears on the statement of the case. In this connection, it is necessary to emphasise that, in framing questions, the Tribunal should be precise and indicate the grounds on c which the questions of law are raised. Where, however, the question is sufficiently specific, we are unable to see any ground for holding that only those contentions can be argued in support of it which had been raised before the Tribunal. In our opinion, it is competent to the court in such a case to allow a new contention to be advanced, provided it is within the framework of the question as referred."

Mr. Venugopal, appearing for the petitioner, drew our attention to the observations of Justice Shah, as the learned Chief Justice then was, at p. 617 which are to the following effect:

"The source of the question must be the order of the Tribunal; but of the question it is not predicated that the Tribunal must have been asked to decide it at the hearing of the appeal. It may very well happen and frequently cases arise in which the question of law arises for the first time out of the order of the Tribunal. The Tribunal may wrongly apply the law, may call in aid a statutory provision which has no application, may even misconceive the question to be decided, or ignore a statutory provision which expressly applies to the facts found. These are only illustrative case: analogous cases may easily be multiplied .. It would indeed ., be perpetrating gross in justice in such cases to restrict the assessee or the Commissioner to the questions which have been raised and argued before the Tribunal and to refuse to take cognisance ofquestion which arise out of the-order of · tl!_e Tribun~. but which were notarg11ed, because they could not (in the absence of any indication as to what the

p. 11 Copy page pinpoint

Tribunal was going to decide) be argued." A As mentioned hereinbefore, this is an application for leave to appeal from the decisions of the tribunal and the High Court under Article 136 of the Constitution. The real and substantial question posed and canvassed before the tribunal in its appellate order and in the appeal, as is manifest from the facts stated before, was, whether a'sum of Rs.20 lakhs could in the facts and the circumstances be considered ,. as part of the income of the assessee and as such suffer taxation. Now ' the question sought to be raised is, whether in view of the decision of this Court in Piara Singh's case (supra) the amount of Rs.20 lakhs ' could be treated as legitimate business loss of the assessee.

It is possible to take the view that this is substantially a different question, namely, whether an amount is a business loss even assuming that it was the income. It is possible and conceivable to consider two different questions, namely, whether a certain sum of money is the income of the assessee, and secondly, whether even assuming that such was the income, was that income liable to be deducted in view of the provisions of the Act. It is possible to take the view that these are substantially different questions and not merely different aspects of the same question. Considerations which go into determination of whether an amount should be treated as income and the considerations " , which are relevant to determine whether even assuming that, that was the income the amount was deductible, are different. The question in --',_ E this form was not canvassed before the tribunal at any point of time in the alternative. --- It may be reiterated that the Central Excise Officers at Valayar check-post seized gold weighing 16,000 gms. from Car No. MYX 9432, which was being driven by the petitioner along with the documents and F >- took the petitioner into custody. The Collector of Central Excise, Madras had confiscated the gold in question and found that the petitioner was in possession of the gold. The assessment of the petitioner for the year in question was originally completed at a total income of Rs.1,571. Subsequent to the completion of the original assessment, the petitioner filed a return declaring a-total income of G Rs. 9 ,571. The Income Tax Officer issued notice under section 148 of the Act.

The Tribunal ultimately had accepted the revenue's contention, restored the addition of Rs.20 lakhs made by the assessing authority, inter alia, holding that the onus was on the petitioner to prove that the H

12 SUPREME COURT REPORTS [1990] 2 S.C.R.

A gold was not owned by him which onus the petitioner had failed to discharge. The Tribunal had gone into and adjudicated the question substantially raised by the petitioner that the confiscated gold could not be treated as the income of the petitioner. The Tribunal rejected the application of the petitioner on the ground that the claim of loss on account of the confiscation of the gold was not the subject-matter of B the appeal. The principles of law have been discussed by this Court in Scindia Steam Navigation Co. Ltd's case (supra}.

In the facts and the circumstances of the case, the Tribunal and the High Courts have taken the view that whether certain sum of money can be treated as the income of an assessee and whether that c sum of money could be deducted as loss are different question of law and not different aspects of the same question. The Tribunal and the High Court have taken a particular view. They have borne in mind the correct principles that are applicable in the light of the law laid down by this Court in Scindia Steam Navigation's case (supra).

D In the background of the facts and the circumstances of the case, as mentioned hereinhefore, if the aforesaid view of the Tribunal and the High Courts is a possible view, we are not inclined to interfere with that view under Article 136 of the Constitution in the light of the facts and the circumstances of this case. We are not prepared to say that in justice has been done to the petitioner. The view taken by the E Tribunal and the High Courts is a possible view. The Tribunal and the High Courts have borne in mind the principles of law laid down by this Court.

In the aforesaid view of the matter; in the facts and the cir- cumstances of the case, this application is rejected and aceordingly F dismissed.

R.N.J. Petition dismissed.