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PETITIONER: COMMISSIONER OF INCOME-TAX (CENTRAL),NEW DELHI

       Vs.

RESPONDENT: M/S.  S. ZORASTER & COMPANY

DATE OF JUDGMENT24/09/1971

BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. REDDY, P. JAGANMOHAN

CITATION:  1972 AIR 2048            1972 SCR  (1) 916

ACT: Court  in granting certificate-No jurisdiction to go  behind the  finding recorded in original judgment disposing of  the Reference.

HEADNOTE: In  respect  of  the  goods supplied  by  the  assessee  the Government of India paid the price by cheques.  The  cheques drawn  on  the-  Reserve  Bank of  India,  at  Bombay,  were received  by  the assessee at Jaipur,  outside  the  taxable territories.   On  the question whether the  amounts  repre- sented by the cheques, cashed at Bombay, were taxable in the hands  of the assessee under the Income-tax Act,  1922,  the High  Court, on reference, held that the mere fact that  the cheques  were  realised at Bombay was of no  consquence  and that  in the particular circumstances of the case since  the cheques  were ’received by the assessee outside the  taxable territory  the amounts covered by the cheques were  received by  the  assessee  at  that  place.   In  dealing  with  the contention  of  the  revenure  that  the  assessee  must  be considered to have received the cheques at Delhi where  they were posted, the High Court accepted the finding recorded by the  Appellate Tribunal in its supplementary statement  that the  revenue  failed  to establish the fact  of  posting  of cheques  at Delhi.  The High Court also recorded  a  finding that  the  revenue failed to place any material  before  the Tribunal  to prove that the cheques were being sent  by  the Government of India through post. The  revenue  filed applications before the High  Court  for grant of certificate for appeal to this Court.  The  learned Judges who dealt with these applications were different from those  who  dealt with the main  reference.   Two  alternate grounds  were urged viz., (1) the payments by  cheques  were not  made at Jaipur where the cheques were received, but  at Bombay  where  they were cashed and (ii)  the  cheques  were posted at Delhi and as the post office acted as the agent of the  assessee the payment was made at Delhi.  On  the  first ground the High Court held that in view of the decisions  of this  Court  no substantial question of law remained  to  be decided;  but, granted certificate to appeal on  the  second ground.  It held that the question of law which really arose was   whether  a  presumption  could  be  drawn  under   the circumstances of the case that the cheques were sent by  the

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Government  by  post  or whether the  fact  of  sending  the cheques by post had to be positively proved by the  Revenue. The court also observed that the general question whether  a Presumption  under s. 114 illustration (f) of  the  Evidence Act could be raised in circumstances such as those presented by  the  case was likely to arise in many future  cases  not restricted to income-tax. In  this Court a preliminary objection was raised as to  the maintainability  of  the  appeals on  the  ground  that  the certificates granted by the High Court were not proper.   It was urged that the High Court erred in ignoring the specific findings  recorded  by  the Tribunal, and  accepted  by  the learned  Judges. answering the reference, that  the  Revenue placed  no evidence before it to show that the cheques  were posted  at Delhi, and, therefore, there was no  question  of any presumption arising under s. 114 91 7 illustration  (f)  of the Evidence Act.  Setting  aside  the order of the High Court granting the certificate, HELD  :  (i)  In circumstances like  the  present  case  the jurisdiction  of  the  court at the stage  of  dealing  with application  for  grant of certificate is  limited  only  to considering  whether any substantial question of law  arises having  due  regard  to  the  material  on  record  and  the discussion on facts and law contained in the judgment of the High  Court which dealt with the appeal or reference or  any other proceeding as the case may be., [924 E] (ii)On the findings recorded by the Appellate Tribunal  and by  the High Court no question of applying  any  presumption under  s. 114 of the Evidence Act arises for  consideration. The  learned Judges, dealing with the application for  grant of  certificates,  had  no jurisdiction  to  go  behind  the finding  recorded in the original judgment disposing of  the reference. [925 F] (iii)This  Court  should not be invited to  decide  any question  of  law  much less substantial  question  of  law, purely in the abstract.  The question of law must reasonably arise on the basis of the material on record. [924 H] (iv)Regarding  the  question  that  the  assessee  may   be considered  to  have  received the payments  at  Bombay  the learned Judges rightly declined to grant a certificate.

JUDGMENT: CIVIL  APPELLATE JURISDICTION : Civil Appeal Nos.  2012  and 2013 of 1968. Appeals from the judgment and order dated February 21,  1967 of  the  Delhi High Court in Income-tax Reference No.  7  of 1961. R.H.  Dhebar,  Urmila Kapoor and P. L.  Juneja,  for  the appellant (in both the appeals). N.D. Karkhanis, Ram Lal, A. T. M. Sampath and E. C. Agra- wala, for the respondent (in both the appeals). The Judgment of the Court was delivered by Vaidialingam,  J. These two appeals, on certificate, by  the Commissioner of Income-tax (Central) New Delhi, are directed against  the  common judgment and order dated  February  21, 1967  in Income-tax Reference No. 7 of 1961.  The  reference related  to the assessment years 1942-43 and  1943-44.   The question of law, referred for the opinion of the High  Court under   S.  66(1)  of  the  Indian  Income-tax   Act,   1922 (hereinafter to be referred to as the Act) was as follows :               "  Whether on the facts and  circumstances  of               the case, the profits and gains in respect  of

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             the  sales  to the Government of  India,  were               received  by  the  assessee  in  the   taxable               territories."               The  High Court answered the said question  in               favour of the assessee as follows :               "On  the facts and circumstances of the  case,               the profits and gains in respect of the sales,               made to the               918               Government  of India, must be deemed  to  have               been  received  by the assessee  outside,  the               taxable territories." When  Mr.  R.  R. Dhebar, learned counsel  for  the  Revenue opened  the appeals, a preliminary objection was  raised  by Mr.  N.  D.  Karkhanis, learned counsel  for  the  assessee- respondent  that the certificates granted by the High  Court are not proper and as such the appeals are not maintainable. The nature of the preliminary objection will be referred  to by  us in due course.  As we are accepting  the  preliminary objection, we will only refer to the facts in so far as they are  relevant for holding that the certificates granted  are not proper and as such the appeals are not maintainable. The  assessee-respondent  is  a  firm  consisting  of  three partners,  namely,  Sohanmal,  Mehtab  chand  and  Allahdin. Sohanmal  and Mehtabchand are also the two coparceners of  a Hindu  Undivided  Family.  The said family had got  its  own business  firm known also by the name of the assessee,  M/s. S. Zoraster and Company.  The assessee firm, as well as  the joint  family firm, were both situated in Jaipur, which  was outside the taxable territories at the relevant period.  The assessee had business dealings with the Government of India. In  respect  of  the goods supplied by the  said  firm,  the Government of India paid the price by cheques.  The  cheques in  question  were  received  by  the  assessee  at  Jaipur. However, the said cheques were drawn on the Reserve Bank  of India,  at Bombay.  The assessee, through the agency of  the family firm, sent those cheques to Bombay for collection and realised  the amounts due under the cheques at Bombay.   The question  arose  whether  the  amounts  represented  by  the cheques,  which were cashed at Bombay, were taxable  in  the hands  of  the  assessee  under  the  Act.   The  Income-tax Officer,  the Appellate Assistant Commissioner. as  well  as the  Appellate  Tribunal held that as the amounts  had  been realised  in  Bombay,  which is  a  taxable  territory,  the amounts covered by the cheques were liable to tax under  the Act. On  an application made by the assessee, the Appellate  Tri- burial  made  a Reference on December 10, 1952 to  the  High Court  of Judicature for the State of Punjab at Simla.   The question  of  law, that was referred to the High  Court  was one,  which  we  have set out in the  earlier  part  of  the judgment.   The  Reference was numbered as  Civil  Reference Case  No.  3 of 1953 in the Punjab High Court.  As,  in  the opinion  of the High Court, the Appellate Tribunal  had  not given  a finding as to whether the cheques in question  were sent  to the assessee by post and whether the  assessee  had given  any  direction in that regard to the  Government  ,of India,  by its order dated March 24, 1955,  a  supplementary statement  was  called for.  The  assessee  challenged  this order of 919 the  High Court calling for a supplementary statement in  an appeal’  before this Court.  By its order dated  August  17, 1960, this Court dismissed the said appeal.  The decision of this Court is reported in Zoraster & Co. v. Commissioner  of

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Income-tax(1).   After  the  decision of  this  Court,  the. Appellate Tribunal, on March 18, 1961 submitted to the  High Court a supplementary statement.  The case was renumbered in the  High Court as Income-tax Reference No. 7 of  1961.   At this  stage  it may be mentioned that in  the  supplementary statement,  the  Appellate Tribunal had recorded  a  finding that  there is no material on record to show as to  how  the cheques  in question were sent, i.e. whether by post  or  by hand.   The  Appellate  Tribunal  further  found  that   the assessee  had given a direction to pay by cheques  and  that apart  from  this there was no other material on  record  to show any direction given by the assessee regarding the  mode of dispatch of cheques. The  High  Court,  in  its order  under  attack,  noted  the findings  recorded by the Tribunal,namely, that the  cheques were  received by the assessee at Jaipur, but  collected  at Bombay, and that it is not established how the cheques  were sent  to  the  assessee by the  Government  of  India.   The Revenue  contended  before the High Court that  the  amounts covered  by  the cheques in question must be  considered  to have been received by the assessee in the taxable territory, either  at Bombay, on the basis that the amounts covered  by the cheques were realised at that place, or at Delhi, on the ground  that  the cheques must be considered  to  have  been received  by  the assessee at that place where  the  cheques were  posted,  as the post office is to be  considered,  the agent of the assessee.  The High Court first considered  the question  as to what is the effect of payments made  by  the Government  to  the assessee by means of cheques.   After  a reference to certain decisions of this Court, the High Court held  that the mere fact that the cheques were  realised  at Bombay  is  of  no  consequence.   It  the  particular  cir- cumstances  of the case, the High Court is of the view  that as  the cheques were received by the assessee at Jaipur,  it must  be held that the amounts covered by the  cheques  were received  by the assessee at that place, which  was  outside the taxable territory. In  dealing  with  the contention of the  Revenue  that  the cheques  must  be considered to have been  received  by  the assessee  at Delhi, where they were posted, the  High  Court again,  after a reference to the relevant decisions of  this Court,  adverted  to the finding recorded by  the  Appellate Tribunal that there is no evidence to show that the  cheques were sent by post.  In fact, it is pertinent to note how the High  Court actually dealt with this question.  It  observed as follows (1)  [1960] 40 I.T.R. 552. 920               "If  there was a finding by the Tribunal  that               the Government of India was invariably sending               the cheques referred to earlier from Delhi  to               Jaipur through post and that the assessee  was               receiving those cheques without demur, then we               would  have found no difficulty  in  upholding               the contention of Shri Kapur that the  cheques               in question were sent to the assessee  through               post with its implied consent and, that  being               so,  the post office should be  considered  as               the  agent of the assessee.  But as  mentioned               earlier,  in  the instant case,  there  is  no               evidence to show that those cheques were  sent               by  post.   Hence the question  of  assessee’s               consent, implied or otherwise, does not  arise               for consideration." Later  on, the High Court has also observed that  the  stark

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fact  is that there is no finding by the Appellate  Tribunal that  the Government of India sent the cheques by  post  and that  the Revenue has failed to place any material to  prove that  the  cheques  in  question  were  being  sent  by  the Government through post.  On the basis of the above finding, the  High  Court answered the question, referred to  it,  in favour of the assessee. The  Revenue filed two applications, Supreme Court  Applica- tions Nos. 95 and 96 of 1967 before the High Court for grant of  certificates  declaring the cases to be a  fit  one  for appeal  to this Court.  Supreme Court Application No. 95  of 1967  related to the assessment year 1942-43 and No.  96  of 1967 related to the assessment year 1943-44.  In the grounds of appeal, in particular, it was stated that the High  Court has not properly interpreted the decisions of this Court and that the High Court further erred in holding that there  was no proof as to how the cheques were received by the assessee in  Jaipur.  Another ground was taken that the  evidence  on record establishes that the cheques were issued and sent  to the assessee at his request by post. The  learned  Judges, who dealt with  the  applications  for grant  of certificates were different from those  who  dealt with the main Reference.  By order dated July 15, 1968,  the High  Court granted the certificates that the cases are  fit for  appeal to this Court.  Before the learned  Judges,  the Revenue  contended that the assessee must be  considered  to have  received  the amounts covered by the  cheques  in  the taxable  territories on. two alternative grounds : (1)  that the payments by cheques made by the Government of India from Delhi  to  the assessee at Jaipur were not  made  at  Jaipur where  the  cheques  were received by the  assessee  but  at Bombay  where  the cheques were cashed, or (2)  the  cheques were posted by the Government of India at Delhi to the 921 address  of  the assessee at Jaipur and as the  post  office acted  as an agent of the assessee in receiving cheques  the payment was made at Delhi and not at Jaipur. Regarding the first ground the learned Judges held "that  it has  been convincingly negatived by the learned Judges,  who dealt  with the reference on the authority of the  decisions of  this  Court." There is a reference to the  decisions  of this  Court,  as well as the finding recorded  by  the  High Court  when  answering the reference.   The  learned  Judges finally  held  that  the  Revenue  is  not  entitled  to   a certificate  on the basis of ground No. 1 in  the  following words               "In view of the Supreme Court decisions  fully               covering  this point, no substantial  question               of  law  further  remains  to  be   considered               regarding this aspect of the case." Regarding the second ground, that the cheques were posted by the Government at Delhi and that the post office acted as an agent  of the assessee and therefore the amounts covered  by the cheques must be considered to have been received by  the assessee at Delhi, which is a taxable territory, the learned Judges  are of the view that the said contention  cannot  be rejected  on  the plea that no substantial question  of  law arises for consideration by this Court.  In considering this aspect,  the  learned  Judges  observe  that  it  is  common knowledge  that cheques are invariably sent by post and  the Government  of India, which has to make payments by  cheques to  numerous  persons  situated all over  India,  cannot  be expected to send messengers carrying cheques to the  Various places.  There is a reference to certain English  decisions, from  which the learned Judges inferred that a common  usage

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can  be  inferred that cheques are always sent by  post  and never through personal messengers in countries where  postal communication  is  universal.  The  learned  Judges  further observe  that the only reasonable and proper way of  dealing with the situation when payments have to be made by  cheques by  the Government is to assume that the latter  would  send cheques by post.  The High Court is of the view that certain decisions of this Court support the case of the Revenue that parties  intended that cheques issued by the  Government  of India  at  Delhi  should be sent to  Jaipur  by  post.   The learned  Judges then referred to what in their opinion is  a misunderstanding by the High Court of the decisions of  this Court  when  answering the reference and  characterised  the said  misunderstanding as unfortunate.  The  learned  Judges then  referred  to illustration (d) to s. 50 of  the  Indian Contract  Act  and expressed the view that  posting  of  the cheques in Delhi by the Government amounts to payment of 922 money  to  the assessee in Delhi and that  is  the  position regarding  the  present assessee.  Ultimately,  the  learned Judges held that the question of law which really arises  in the  present  case is whether a presumption could  be  drawn under  the circumstances of the case that the  cheques  were sent  by the Government to the assessee by post  or  whether the  fact of sending the cheques by post must be  positively proved  by  the Revenue.  After referring to S. 114  of  the Indian  Evidence Act and in particular to  illustration  (f) thereof, the learned Judges observe that in the case on hand the  cheques  should have been sent by the  Government  from Delhi to the assessee either by post or by the messenger and that as it is not the case of either party that the  cheques were sent by the messenger, the only conclusion to be  drawn is that the cheques must have been sent by post.  Any  other conclusion,  according  to the learned  Judges,  apart  from being  improbable  will also be absurd and,  therefore,  the only alternative,  on which one can proceed  is  that  the cheques must have been sent by post.  There is a  discussion how the risk can be avoided by the cheques being drawn in  a particular manner when they are sent by post.  According  to the learned Judges, the most natural finding should be  that the  cheques  were  sent  from  Delhi  to  Jaipur  by  post. Actually,  what  according  to the learned  Judges,  is  the substantial  question of law, on the basis of ground  No.  2 and  in respect of which the certificates have  been  issued may be reproduced in their own words:               "  .... whether the common course of usage  to               the  presumption  that not  only  the  parties               intended  that the cheques should be  sent  by               post  but that the cheques were actually  sent               by   post.    This  question  has   not   been               considered  by this Court and does not  appear               to have been considered in any other  reported               judicial  decision.  The question whether  the               profits  in  a case were received  in  taxable               territories  or not is not likely to arise  in               further  cases  in view of the fact  that  the               distinction  between taxable  and  non-taxable               territories  does  not now  obtain.   But  the               general  question whether a presumption  under               Section 114, illustration (f) of the  Evidence               Act should be raised by Court in circumstances               such  as those that are present in this  case,               is of great importance.  It is likely to arise               in many future cases not restricted to income-               tax.   Not only is there no specific  decision

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             of  the  Supreme Court on this  question,  but               even a High Court decision covering this point               has  not  been  brought to  our  notice.   We,               therefore,  certify that these two  cases  are               fit for appeal to the Supreme Court." 923 The preliminary objection of Mr. Karkhanis to the  maintain- ability  of the appeals on the ground that the  certificates granted by the High Court are not proper, is as follows: The learned  Judges  have declined to grant certificate  on  the ground  that  no substantial question of law remains  to  be considered regarding the first contention that was urged  by the  Revenue, namely, that the assessee when he  cashed  the cheques  at Bombay, must be considered to have received  the amounts in the taxable territory.  But so far as the  second contention  raised  by  the  Revenue  was  concerned,  which related  to the posting of the cheques by the Government  of India, at Delhi, the High Court in coming to the  conclusion that  there  is a substantial question of  law  has  grossly erred  in  ignoring the specific findings  recorded  by  the Appellate  Tribunal  that  the Revenue  placed  no  evidence before  it  to show that the cheques were posted  at  Delhi, which  finding  has  been accepted by the  High  Court  when answering  the Reference.  In view of this finding of  fact, according  to the learned counsel, there is no  question  of any  presumption arising under s. 114, illustration (,f)  of the  Evidence  Act coming into play.   The  counsel  further urged that the learned Judges have granted a certificate  on a matter which did not arise for consideration and which was not  in dispute before-,the High Court when it answered  the Reference,  and which point had not even been raised in  the applications  for  grant of certificate.  When there  was  a categorical  finding that the Government placed no  evidence regarding the posting of cheques at Delhi, the reasoning  of the  learned Judges when dealing with the  applications  for grant of certificates that the cheques must have been posted at  Delhi,  is  opposed  to evidence.   Further,  it  was  a conclusion which cannot be reached at the stage of  granting a  certificate, being quite contrary to that reached by  the High  Court  when  dealing with the  Reference.   In  short, according to the learned counsel the certificates have  been granted on a point which does not arise for consideration in the appeals. Mr. Dhebar, learned counsel for the Revenue, contended  that the High Court has considered all aspects when granting  the certificates and that there is no infirmity attached to  the orders  granting  certificates that the cases  are  fit  for appeal to this Court.  According to the counsel, this was  a fit case where the presumption arising under s.. 114 of  the Evidence Act should have been applied by the High Court when dealing  with the Reference.  Mr. Dhebar, finally  contended that  as  the certificates have been  issued  properly,  the appeals are maintainable.  The counsel further urged that as reasons  had to be given in the order granting  certificates of fitness, it is inevitable that there should be some  dis- cussion  about  the nature of the questions that  arose  for decision before the Bench which answered the Reference. 924 While we agree with Mr. Dhebar that reasons for granting the certificate  must  be  given by the learned  Judges  in  the order,  those  reasons,  however, in our  opinion,  must  be confined  to  the material on record, which must  have  been before the Court which dealt with an appeal or Reference and in respect of which decision, the aggrieved party desires to come  in appeal to this Court on certificate on  the  ground

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that a substantial question of law arises for consideration. We  are not inclined to accept the contention of Mr.  Dhebar that the High Court has properly exercised its  jurisdiction in certifying that the two cases are fit for appeal to  this Court.  We must frankly admit that when we went through  the order  of the High Court granting the certificates, we  felt that  the learned Judges were either sitting in appeal  over the  judgment  of  the Division Bench,  which  answered  the Reference,  or  were themselves dealing with  the  Reference under s.66(1) of the Act, in the first instance.  Unless the learned Judges were exercising one or the other of the above jurisdiction,  the criticism about the approach made by  the Division  Bench when answering the Reference, could  not  be justified.    It  is  clear  that  when  dealing   with   an application  for grant of certificate of fitness, the  court was exercising no such jurisdiction.  It must be  emphasised that in the circumstances like this, the jurisdiction of the Court, at the stage of dealing with application for grant of certificate  is  limited  only to  considering  whether  any substantial question of law arises having due regard to  the material  on  record  and the discussion on  facts  and  law contained in the judgment of the High Court which dealt with the appeal or Reference or any other proceeding, as the case may be. Regarding  the question that the assessee may be  considered to have received the payments at Bombay, the learned  Judges have  quite rightly declined to grant a certificate  on  the ground  that the point is covered by the decisions  of  this Court and that no substantial question of law arises. As  we  have already pointed out the  certificate  has  been granted by the learned Judges on the basis that the  general question  whether a presumption under s.  114,  illustration (f) of the Evidence Act can be raised is of great importance and  that  it is likely to arise in many future  cases,  not restricted to income-tax.  It should be remembered that this Court  should not be invited to decide any question  of  law much  less  the substantial question of law  purely  in  the abstract.  Such question of law must reasonably arise on the basis  of the material on record. Further,  the  substantial question  of  law,  in order to be certified as  fit  to  be decided by this Court must arise on the facts of a 925 particular  case.  With great respect to the learned  Judges who  dealt with the. applications for grant of  certificate, we  are  constrained to remark that they  have  ignored  the finding  of fact recorded by the Appellate Tribunal  in  its supplementary  statement  dated  March  18,  1961  that  the Revenue  has placed no materials to prove that  the  cheques were posted at Delhi.  It should be remembered that when the Reference  was made in the first instance, the  Punjab  High Court  felt  that the Appellate Tribunal had not  given  any finding  as to whether the cheques in question were sent  to the assessee by post and whether the assessee had given  any direction  in  that regard to the Government of  India.   In view of the absence of such a finding, the High Court by its order dated March 24, 1955 called for a supplementary state- ment from the Appellate Tribunal under s.66 (4) of the  Act. This order was challenged before this Court by the  assessee unsuccessfully. The  purpose of seeking a  supplementary statement was tofocus  the  attention of  the  Appellate Tribunal to this aspect,namely,  the  posting  of   cheques claimed  to  have been done at Delhi by  the  Government  of India.   That the Revenue miserably failed to establish  the fact  of  posting  of cheques at Delhi, is  clear  from  the finding   recorded   by  the  Appellate  Tribunal   in   its

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supplementary statement, which finding has been accepted  by the High Court in its judgment dated February 21, 1967  when answering  the  Reference.   The High Court  has  also  then recorded a finding that the Revenue has failed to place  any material  before  the Appellate Tribunal to prove  that  the cheques  in question were being sent by the  Government  ’of India  through post.  Unfortunately, all those aspects  have been  missed  by the learned Judges when  dealing  with  the applications   filed  by  the  Revenue  for  the  grant   of certificates. On the above findings recorded by the Appellate Tribunal and confirmed  by  the High Court, no question of  applying  any presumption  under  s. 114 of the Evidence  Act  arises  for consideration.    The  learned  Judges,  dealing  with   the applications for grant of certificates, had no  jurisdiction to  go behind the finding recorded in the original  judgment disposing  of  the Reference.  In our  opinion,  the  entire discussion on this aspect of posting of the cheques at Delhi by the learned Judges is beside the point, as that  question no  longer  was  available to the Revenue, in  view  of  the finding  recorded  against  it,  to which  we  have  made  a reference earlier. When  once  the  question of a  presumption  under  s.  114, illustration  (f) of the; Evidence Act does not fall  to  be considered  in  these proceedings, in view of  the  specific finding  recorded  by  the Appellate  Tribunal  against  the Revenue. and 926 accepted  by the High Court, in our opinion, the High  Court was  not justified in certifying, on this ground,  that  the cases are fit for appeal to this Court. As  the  issue  of certificates by the  High  Court  is  not proper,  the  only  course  open to  us  is  to  cancel  the certificates  and  set  aside the order of  the  High  Court granting  them.  The result is that the above  appeals  have become  unsustainable,  as they have been  brought  to  this Court  on the basis of certificates, which, as held  by  us, have not been properly granted. The  appeals, accordingly, are held to be  not  maintainable and  are dismissed with cost.  There will, however, be  only one hearing fee. K.   B.  N.                                          Appeals dismissed. 927