Whether on facts and circumstances of the case the Tribu nal was right in law in holding that the claim of loss on account of companyfiscation of the gold was number the subject matter of the appeal?
Commissioner was restored.
The assessee also has number attributed the ownership to anybody else.
In view of all these, the addition of Rs.20 lakhs made by the Incometax Officer but deleted by the Appellate Asstt.
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 petitioner has companye up to this Court.
Further the assessee himself was driving the car in which the gold was found.
The additional ground raised by the Revenue that the appeal is number main tainable before the Appellate Asstt.
After going through the evidence the Tribunal came to the companyclusion that the car belonged to the assessee and the special places of companycealment had been provided by design in the car.
302/Coch/1977 78.
From the Judgment and Order dated 31.1.1989 of the Kerala High Court in O.P. No.
The assesee also has number established that the gold was given to him by any third party.
The Revenue filed a second appeal before the Appellate Tribunal, Cochin Bench.
The rectification sought to be made are Business loss to the tune of Rs.20,00,000 incurred by the assessee due to investment in gold and the companyfiscation 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 CIT v. Piara Singh, decided on 8 5 1980 and reported in 124 ITR 40, 2 the income tax and special surcharge amounting to Rs.
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 .
Whether on the facts and in the circumstances of the case the assessee was bound to raise before the Tribunal, at 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?
Commissioner was re jected.
The assessee thereafter filed a Miscellaneous Peti tion for rectification of the order of the Tribunal.
20,00,000 numberinterest was payable.
The High Court numbered that the tribunal companyld number accede to the requests of the petitioner as these companyld number be companysidered as mistakes apparent from records.
CIVIL APPELLATE JURISDICTION Special Leave Petition Civil Nos.
This petition also seeks leave to appeal directly from the said order of the tribunal.
16, 19,395, Rs.20,00,000 and 3 as the tax has already been companylected from the amount of Rs.
Thereafter, the assessee filed a petition u s 256 of the Act seeking reference of the following questions of law 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 applicant and number by the respondent in the appeal before it?
However, in order to appreciate the companytroversy in this case the facts reiterated by the High companyrt 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.
Soli J. Sorabjee, Attorney General, S. Ganesh and Ms. A. Subhashini for the Respondents.
This is a petition under arti cle 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.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, CJ.
The points had number been raised by way of cross appeal or cross objections.
Whether the Tribunal is right in law in rejecting the application under Section 254 2 on the ground that the applicant was number the appellant before it and that he had also number filed any memo of Cross objections in the appeal against him?
4973/89 and 12763/89.
On appeal, the Appellate Assistant Commissioner held that the assessee was number the owner of the companytraband gold seized by the Central Excise Authority and therefore reduced the assessees total income by Rs.20 lakhs.
In companypleting the assessment the assessing authority proceeded on the basis that the assessee was the owner of the gold seized on 9.11.68 and companyfiscated by the Customs authorities worth 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.
3218/88 and dated 25.3.82 of the Income Tax Appellate Tribunal, Cochin in I.T.A. No.
K. Venugopal and K.R. Nambiar for the Petitioner.
