14 May 1959
Supreme Court
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MESSRS. LALCHAND BHAGAT AMBICAL RAM Vs THE COMMISSIONER OF INCOME-TAX, BIHAR & ORISSA

Case number: Appeal (civil) 679 of 1957


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PETITIONER: MESSRS.  LALCHAND BHAGAT AMBICAL RAM

       Vs.

RESPONDENT: THE COMMISSIONER OF INCOME-TAX, BIHAR & ORISSA

DATE OF JUDGMENT: 14/05/1959

BENCH: BHAGWATI, NATWARLAL H. BENCH: BHAGWATI, NATWARLAL H. DAS, SUDHI RANJAN (CJ) HIDAYATULLAH, M.

CITATION:  1959 AIR 1295            1960 SCR  (1) 301

ACT:        Income-tax-Assessment  based  on  conjecturcs-Fact   finding        authority   acting  without  evidence-Power  of   court   to        interfere-High  Denomination  Bank  Notes   (Demonetisation)        Ordinance, 1946 (Ordinance III Of 1946).

HEADNOTE:        The appellant a Hindu undivided family carrying on  business        in  grain  kept  its  books  of  account  according  to  the        mercantile  system  and  maintained in its  cash  books  two        accounts: one showing the cash balances from day to day  and        the  other  known as " Almirah account " wherein  were  kept        large  balances which were not required for  the  day-to-day        working of the business.  On January 12, 1946, on which date        the   High   Denomination   Bank   Notes   (Deinonetisation)        Ordinance,  1946, was promulgated, the cash balances of  the        appellant  were RS. 29,284 in its Rokar and Rs. 2,81,397  in        the  Almirah account.  For the assessment year  1946-47  the        appellant filed-its Income-tax Return showing a loss of  Rs.        46,4I5  in  the business.  The Income-tax  Officer,  in  the        course  of  the  assessment,  noticed  that  the   appellant        encashed  high  denomination  notes  of  the  value  of  RS.        2,g1,000  on January 19, 1946, and the explanation given  by        the  appellant was that these notes formed part of its  cash        balances including cash balance in the Almirali account, but        it  was  rejected by the Income-tax Officer relying  on  the        following circumstances: (1)  that   the  appellant’s   food        grains licence had been cancelled for the    accounting year        for its failure to keep proper stock accounts, (2)     that        the  appellant  was prosecuted under the  Defence  of  India        Rules  but had been acquitted having been given the  benefit        of  doubt, (3) that the appellant was a speculator,  and  as        such  could easily have earned amounts far in excess of  the        value  of  the high denomination notes  encashed,  (4)  that        notwithstanding the fact that the period was very favourable        to the food grains dealers the appellant had declared a loss        for the assessment year I944-45 UP to 1946-47, though it had        the  benefit  of a large capital on hand, and (5)  that  the        appellant  was  one  of  the  premier  grain  merchants   of        Sahibganj, a place which had gained sufficient notoriety for        smuggling  foodgrains.  The Income-tax Officer came  to  the

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      conclusion that the appellant had all these probable sources        from which it could have earned the sum of Rs. 2,91,000, and        accordingly  he treated the sum as the appellant’s  secreted        profits  from business and included it in its total  income.        The  Appellate Tribunal accepted the account books  produced        by the appellant        302        and examined the cash book and taking into consideration all        the circumstances which had been adverted to by the  Income-        tax  Officer  took  the view that  the  appellant  might  be        expected  to  have possessed as part of  its  business  cash        balance  of  at  least Rs. 1,50,000 in  the  shape  of  high        denomination  notes on January 12, 1946, when the  Ordinance        was  promulgated,  but that the nature of  the  source  from        which   the  appellant  derived  the  remaining   14i   high        denomination notes of Rs. 1,000 each remained unexplained to        its   satisfaction.   It  accordingly  reduced  the   amount        considered as the secreted profits from Rs. 2,91,000 to  Rs.        1,41,000.   On  reference,  the High  Court  held  that  the        finding arrived at by the Tribunal was one of fact and  that        it could not be urged that it was based on no evidence.   On        appeal  to  the  Supreme  Court it  was  contended  for  the        appellant  that  the finding arrived at by  the  authorities        concerned, though it be one of fact, was vitiated by  reason        of the authorities indulging in conjectures, suspicions  and        surmises  and basing the same on no material whatever  which        would go to support the same, and that, in any case, it  was        a preverse one which a reasonable body of men could not have        arrived at on the material on the record.        Held,   that  the  Tribunal  had  been  influenced  by   the        suspicions,  conjectures  and  surmises  which  were  freely        indulged  in by the Income-tax Officer, and had  arrived  at        its  conclusion, as it were by a rule of thumb, without  any        proper materials before it and that its finding could not be        sustained;  that  having accepted the appellant’s  books  of        account  it  was  not open to the  Tribunal  to  accept  the        explanation of the appellant in part as to Rs. 1,50,000  and        reject the same in regard to the sum of Rs.  1,41,000.         Messrs.  Mehia Parikh & Co. v. The Commissioner of  Income-        tax, Bombay, [1956] S.C.R. 626 and Kanpur Steel Co. Ltd.  v.        Commissioner of Income-tax, Uttar Pradesh, [1957] 32  I.T.R.        56, relied on.        Where  a Tribunal has acted without any evidence or  upon  a        view of the facts which could not reasonably be  entertained        or  the  facts  found  were  such  that  no  person   acting        judicially  and properly instructed as to the  relevant  law        could have found, the court is entitled to interfere.        Dhirajlal Girdharilal v. Commissioner of Income-tax, Bombay,        [1954]  26  I.T.R.  736; Dhakeswari  Cotton  Mills  Ltd.  v.        Commissioner  of  Income-tax, West Bengal, [1955]  i  S.C.R.        941;  Messrs.   Mehta Parikk and Co. v. The  Commisioner  of        Income-tax,  Bombay, [1956] S.C.R. 626 and Meenakshi  Mills,        Madurai v. Commissioner of rncome-tax, Madras, [19561 S.C.R.        69i, followed.

JUDGMENT:        Civil APPELLATE JURISDICTION: Civil Appeals Nos. 679 and 680        of 1957.        Appeals by special leave from the judgment and decree  dated        the January 5, 1955, of the Patna High Court, in M.J.C. Nos.        374 & 375 of 1952.                                    303        R.   J. Kolah and R. Patnaik, for the appellant.

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      A.   N. Kripal and D. Gupta, for the respondent.        1959.  May 14.  The Judgment of the Court was delivered by        BHAGWATT  J.-These  are two connected appeals  with  special        leave   granted  by  this  Court  under  Art.  136  of   the        Constitution and arise out of the appellant’s assessment  to        Income-tax  for  the  assessment  year  1946-47  and  Excess        Profits Tax for the chargeable accounting period January  9,        1945, to February 2, 1946.        The  appellant  is  a Hindu  undivided  family  carrying  on        extensive  business  in grain as  merchants  and  commission        agents.   It  is  one of the  premier  grain  merchants  and        wholesalers of Sahibganj in the District of Santhal Parganas        in the State of Bihar.  It has branches at Nawgachia in  the        District  of  Bhagalpur and at Dhulian in  the  District  of        Murshidabad in West Bengal.        The appellant filed its Income-tax Return for the assessment        year  1946-47 showing a loss of Rs. 46,415 in the  business.        The Income-tax Officer, Patna, however, in the course of the        assessment  noticed  that the appellant  had  encashed  high        denomination notes of the value of Rs. 2,9 1,000 on  January        19,  1946.  The Income-tax Officer asked for an  explanation        which  the  appellant gave stating that these  notes  formed        part  of  its cash balances including cash  balance  in  the        Almirah  account.   The cash balances of  the  appellant  on        January  12, 1946, on which date the High Denomination  Bank        Notes (Demonetisation) Ordinance, 1946, was promulgated were        Rs.  29,284-3-9  in its Rokar and Rs. 2,81,397-10-0  in  the        Almirah  account.   The Almirah account was an  account  for        moneys withdrawn and kept at home.  The appellant sought  to        prove the fact that the high denomination notes eneashed  by        it formed part of its cash balances from certain entries  in        its  accounts wherein the fact that moneys were received  in        high  denomination notes had been noted.  Portions of  these        entries to the effect that moneys had been received in  high        denomination notes were found        304        by  the Income-tax Officer to be  subsequent  interpolations        made  by the appellant with a view to advance its case  that        the  cash  balances contained the  high  denomination  notes        encashed  by  it.   The Income-tax Officer  found  that  the        appellant’s  food  grains  licence  at  Nawgachia  had  been        cancelled  for the accounting year for its failure  to  keep        proper stock accounts and that the appellant was  prosecuted        under  the  Defence of India Rules but  had  been  acquitted        having  been  given the benefit of  doubt.   The  Income-tax        Officer also had regard to the fact that the appellant was a        speculator  and  that as a speculator  the  appellant  could        easily have earned amounts far in excess of the value of the        high denomination notes encashed.  He con. sidered that even        in  the  disclosed  volume of business  in  the  year  under        consideration in the Head Office and in the branches,  there        was possibility of his earning a considerable sum as against        which  it showed a net loss of about Rs.46,000. The  Income-        tax Officer also noticed that notwithstanding the fact  that        the  period was very favourable to food grains dealers,  the        appellant had declared a loss for the assessment year 194445        up to 1946-47, though it had the benefit of a large  capital        on   hand.   The  Income-tax  Officer  further   took   into        consideration  the circumstances that Nawgachia and  Dhulian        were  very  important business centers  and  Sahibganj,  the        principal place of business, had gained sufficient notoriety        for smuggling foodgrains and other commodities to Bengal  by        country boats.  Dhulian which was just on the Bengal,  Bihar        border was also reported to be a great receiving centre  for        such commodities.  Having regard to all these circumstances,

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      the Income-tax Officer rejected the appellant’s  explanation        that  the  high denomination notes formed part of  its  cash        balances  and  treated  the  sum  of  Rs.  2,91,000  as  the        appellant’s  secreted profits from business and included  it        in its total income and assessed the appellant for the  said        assessment year on the income of Rs. 1,39,117.  Dealing with        the  Excess  Profits Tax assessment, he also held  that  the        said  income was derived from the business of the  appellant        and hence it was liable to excess profits tax also,                                    305        The appellant preferred an appeal to the Appellate Assistant        Commissioner against both these assessment orders and by his        orders  dated  February 28, 1951,  the  Appellate  Assistant        Commissioner upheld the orders of the Income-tax Officer and        dismissed the appeals.        On  further  appeals from the said orders of  the  Appellate        Assistant Commissioner to the Income-tax Appellate Tribunal,        the  Tribunal by its order dated April 29,  1952,  dismissed        both the appeals as regards the Incometax as well as  Excess        profits tax.  Even though before the Income-tax Officer  and        the  Appellate  Assistant  Commissioner  the  case  of   the        appellant  was  that the account book  which  contained  the        entries  in  regard  to  the  receipts  of  moneys  in  high        denomination  notes were genuine and correct, this  position        was abandoned by the appellant before the Tribunal.   Before        the  Tribunal,  the appellant stated that the  said  entries        were  made in sheer nervousness after coming into  force  of        the High Denomination Bank Notes (Demonetization) Ordinance,        1946,  on  January 12, 1946, as the appellant did  not  know        that  it had specific proof in its possession of having  the        high  denomination notes as part of its cash balances.   The        Tribunal held that there was no other reason to suspect  the        genuineness   of   the   account  books   in   which   these        interpolations were made.  If the entire account books  were        fabricated to serve its purpose, there would be no need  for        the  appellant  to  make interpolations  between  the  lines        already  written in a different ink and in such  an  obvious        manner  as to catch one’s eye on the most  cursory  perusal.        The  Tribunal,  however, examined the cash book  and  taking        into  consideration  all the circumstances  which  had  been        adverted  to  by  the  Income-tax  Officer  held  that   the        appellant might be expected to have possessed as part of its        business cash balance of at least Rs. 1,50,000 in the  shape        of  high  denomination notes on January 12, 1946,  when  the        Ordinance  above-mentioned was promulgated.  A copy  of  the        statement of large amounts received by the appellant from  a        single  constituent  had been filed by the  appellant  which        showed  that  sums  aggregating to  Rs.  5,04,713  had  been        received by the appellant in large amounts        39        306        exceeding  Rs. 1,000 between February 6, 1945,  and  January        11,  1946.  As to large payments made by the  appellant,  no        statement was filed, but the Tribunal examined the  accounts        with a view to ascertain the payments which could have  been        made  in high denomination notes.  The Tribunal came to  the        conclusion  that  the nature of the source  from  which  the        appellant derived the remaining 141 high denomination  notes        of Rs. 1,000 each remained unexplained to its  satisfaction.        It  accordingly  ordered  that  the  addition  made  by  the        authorities  be reduced from Rs. 2,91,000 to  Rs.  1,41,000.        The  Income-tax  Officer  was  also  directed  to  make  the        necessary   consequential  adjustment  in   the   Income-tax        assessment  based  upon the result of the  connected  Excess        Profits  Tax  appeal.  In regard to the Excess  Profits  Tax

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      appeal the Tribunal after taking into account the  preceding        and succeeding assessments and the nature of the appellant’s        business   and  the  opportunities  that  it  had  to   make        substantial business profits outside the books held that the        add  back  of  Rs. 1,41,000 must be  made  to  the  business        profits  disclosed by the appellant.   Consequential  relief        was accordingly given in the Excess Profits Tax appeal also.        The appellant thereafter applied to the Tribunal for stating        a  case  and  raising and referring to the  High  Court  the        following  questions of law arising from the said  order  of        the  Tribunal both as regards the Incometax and  the  excess        profits tax assessments :-        (1)  "  Whether  there  is  any  material  to  justify   the        conclusion  that  Rs. 1,41,000 is secreted  profit  for  the        purpose  of  assessment,  this amount being  a  part  of  s.        2,91,000  and  which  was the  amount  represented  by  high        denomination notes encashed by the Petitioner.        (2)  " Whether there is any material for a finding that  the        sum  of  Rs.  1,41,000 is the secreted  value  of  the  high        denomination  notes  was business income  liable  to  excess        profits tax."        By  its order dated August 15, 1952, the Tribunal  dismissed        these  applications stating that the finding of  the  taxing        authorities was a pure finding of fact based        307        on  evidence before them and that no question of  law  arose        out of the said order of the Tribunal.        The appellant thereupon made applications to the High  Court        under  s. 66(2) for directing the Tribunal to state  a  case        and  raise and refer the said questions of law to  the  High        Court  for  its decision.  By its order  dated  January  21,        1953,  the High Court directed the Tribunal to state a  case        and  raise  and refer the following question of law  to  the        High Court I for its decision in both the applications:-         Whether there is any material to support the finding of the        Appellate  Tribunal that a sum of Rs. 1,41,000  is  secreted        profit liable to be taxed in the hands of the assessee under        the  Indian Incometax Act and under the Excess  Profits  Tax        Act "        The  tribunal  accordingly  stated a  case  and  raised  and        referred the aforesaid question of law to the High Court.        The said Reference was heard by the High Court and  judgment        was  delivered  on January 5, 1955, whereby the  High  Court        answered the referred question in the affirmative.  The High        Court was of the opinion that the onus of proving the source        of the said amount was on the appellant which the  appellant        did  not  discharge and that there was evidence  before  the        Tribunal  to  come to the conclusion it  did.   The  finding        arrived  at by the Tribunal was therefore a pure finding  of        fact  and  it  could not be urged that it was  based  on  no        evidence.  The High Court further held that as the appellant        itself  claimed that the said amount of Rs. 2,91,000  formed        part  of the cash balance of its business, the said  profits        were  profits of the business and as such liable  to  excess        profits tax.        The  appellant  then  applied  to  the  High  Court  for   a        certificate under s. 66A (2) of the Income-tax Act for leave        to  appeal to this Court.  These applications were  rejected        by the High Court on August 25, 1955, observing that it  had        answered the question of law not on the academic  principles        of  onus but on the material from which it was open  to  the        Income-tax authorities to arrive at the conclusion at  which        they arrived.        308        The appellant thereupon on October 22, 1955, applied to this

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      Court for special leave to appeal which was granted by  this        Court on November 28, 1955, in both the appeals arising  out        of  the  assessment  for Income-tax as well  as  the  excess        profits  tax.  Both the appeals arising out of these  orders        being Civil Appeals Nos. 679 and 680 of 1957 are now  before        us.        The  main  question  to determine in these  two  appeals  is        whether there was any material to support the finding of the        Tribunal  that  the  sum of  Rs.  1,41,000  represented  the        secreted  profits  of the appellant’s business and  as  such        liable  to be taxed in the hands of the appellant under  the        Indian  Income-tax Act and the Excess Profits Tax Act ?  The        contention of the Revenue all throughout has been that it is        a  finding of fact reached by the authorities  competent  in        that behalf and this     Court  should  not  interfere  with        such  findings of fact. The contention of the  appellant  on        the  other  hand,  has been that even though  it  may  be  a        finding  of fact to be reached by the authorities  concerned        on the materials on the record before them, such finding  is        vitiated   by  reason  of  the  authorities   indulging   in        conjectures, suspicions and surmises and basing the same  on        no material whatever which goes to support the same.  It  is        also  contended  that  the  finding reached  by  them  is  a        perverse  one which a reasonable body of men could not  have        arrived at on the material on the record.        The limits of our jurisdiction to interfere with finding  of        fact  reached by the courts or tribunals of facts have  been        laid  down  by us in various decisions of  this  Court.   In        Dhirajlal Girdharilal v. Commissioner of Income-tax,  Bombay        (1)  we  observed that when a Court of fact arrives  at  its        decision by considering material which is irrelevant to  the        enquiry,  or  acts on material, partly relevant  and  partly        irrelevant, where it is impossible to say to what extent the        mind  of the Court was affected by the  irrelevant  material        used  by it in arriving at its decision, a question  of  law        arises:  Whether  the finding of the Court of  fact  is  not        vitiated by reason of its having        (1)  [1954] 26 I.T.R. 736.        309        relied   upon  conjectures,  surmises  and  suspicions   not        supported by any evidence on record or partly upon  evidence        and partly upon inadmissible material.  We also observed  in        Dhakeswari Cotton Mills Ltd. v. Commissioner of  Income-tax,        West   Benyal  (1)  that  an  assessment  so  made   without        disclosing  to the assessee the information supplied by  the        departmental   representative   and   without   giving   any        opportunity  to  the assessee to rebut  the  information  so        supplied  and  declining  to  take  into  consideration  all        materials which the assessee wanted to produce in support of        the case constituted a violation of the fundamental rules of        justice and called for interference on our part. In  Messrs.        Metha  Parikh  and Co. v. The  Commissioner  of  Income-tax,        Bombay(’) this Court observed that the conclusions based  on        facts  proved  or admitted may be conclusions  of  fact  but        whether  a  particular inference can legitimately  be  drawn        from  such  conclusions may be a question  of  law.   Where,        however,  the fact finding authority has acted  without  any        evidence  or  upon  a  view of the  facts  which  could  not        reasonably be entertained or the facts found were such  that        no  person acting judicially and properly instructed  as  to        the relevant law could have found, the Court is entitled  to        interfere.   In our decision in Meenakshi Mills, Madurai  v.        Commissioner  of Income-tax, - Madras (3)  after  discussing        the various authorities on the subject we laid down that:-        (3)  A finding on a question of fact is open to attack under

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      S.  66(1) as erroneous in law when there is no  evidence  to        support it or if it is perverse."        The latest pronouncement of this Court in Omar Salay Mohamed        Sait   v.  The  Commissioner  of  Income-tax,   Madras   (4)        summarises the position thus,:-        "  We are aware that the Income-tax Appellate Tribunal is  a        fact  finding  Tribunal  and  if  it  arrives  at  its   own        conclusions of fact after due consideration of the  evidence        before it this Court will not        (1) [1955] I S.C.R. 941.  (3) [19561 S.C.R. 69i.        (2)  [1956] S.C.R. 626.     (4) C.A. No. 15 Of 1958  decided        on        March 5, 1959.        310        interfere.   It is necessary, however, that every  fact  for        and against the assessee must have been considered with  due        care  and  the  Tribunal must have given its  finding  in  a        manner which would clearly indicate what were the  questions        which arose for determination, what was the evidence pro and        contra  in  regard  to each one of them and  what  were  the        findings reached on the evidence before it.  The conclusions        reached  by  the  Tribunal should not  be  coloured  by  any        irrelevant  considerations  or matters of prejudice  and  if        there  are any circumstances which required to be  explained        by the assessee, the assessee should be given an opportunity        of doing so. On no account whatever should the Tribunal base        its  findings  on suspicions, conjectures  or  surmises  nor        should it act on no evidence at all or on improper rejection        of material and relevant evidence or partly on evidence  and        partly  on  suspicions, conjectures and surmises and  if  it        does  anything  of  the sort, its findings  even  though  on        questions  of  fact will be liable to be set aside  by  this        Court."        It  is  in the light of these observations that we  have  to        determine  the  question arising before us  in  the  present        appeals.   It  is  clear on the record  that  the  appellant        maintained its books of account according to the  mercantile        system  and  there  were maintained in its  cash  books  two        accounts: one showing the cash balances from day to day  and        other known as " Almirah account " wherein ’Were kept  large        balances which were not required for the day-to-day  working        of  the  business.   Even though the  appellant  kept  large        amounts in bank deposits and securities monies were required        at  short  notice at different branches  of  the  appellant.        There  were also collections made from various Beoparies  or        -merchants and monies were also required for doing the grain        purchase  work  on behalf of the Government.   These  monies        were credited in the Almirah account which showed heavy cash        balances  from  time to time.  In the books of  account  for        previous years it was the practice of the appellant to  give        details  of  the  notes of  high  denominations  giving  the        distinctive numbers of these notes received or paid        311        or at least other description e.g., " So many notes " of Rs.        1,000 each.  In the assessment year, however, this  practice        does not appear to have been followed but entries  continued        to be made of monies thus received from the banks, different        branches,  Beoparees  etc., without any such  details  being        filled therein.  A statment of these cash balances viz., the        balance  in  the Rokar and the balance in the  Almirah  from        September 1, 1945, to January 31, 1946  was filed before the        Income-tax authorities and this statement showed that  apart        from  the  balance in the Rokar the balance in  the  Almirah        rose  from  Rs. 1,36,397-10-0 on September 1, 1945,  to  Rs.        1,97,397-10-0 on September 30, 1945, to Rs. 2,23,397-10-0 on

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      October 13, 1945, to Rs. 2,65,397-10-0 on November 27, 1945,        to  Rs. 2,91,397-10-0 on December 29, 1945, and remained  at        Rs.  2,81,397-10-0 on January 10, 1946.  The balance in  the        Rokar fluctuated considerably but on the relevant date January        10, 1946, it stood at Rs. 26,092-10-9.It was Rs. 24,976-13-3        on January II, 1946, and Rs. 29,284-3-9 on January 12, 1946,        when  the  High  Denomination  Bank  Notes  (Demonetization)        Ordinance,  [1946,  was promulgated.  These  entries  showed        that there was with the appellant on on January 12, 1946, an        aggregate  sum  of  Rs.  3,10,681-13-9  and  it  was  highly        probable  that the High Denomination notes of  Rs.  2,91,000        were  included in this sum of Rs. 3,10,681-13-9.  The  books        of account of the appellant were not challenged in any other        manner  except in regard to the interpolations  relating  to        the  number  of high denomination notes of  Rs.  1,000  each        obviously  made  by the appellant in the  accounts  for  the        assessment year in question in the manner aforesaid and even        in  regard to these interpolations the explanation given  by        the  appellant  in regard to the same was  accepted  by  the        Tribunal.   Even though the Income-tax Officer made  capital        out  of the interpolations and subsequent insertions in  the        books  of account and styled the evidence furnished by  them        as  created  or manipulated evidence  thus  discounting  the        story of the appellant in regard to the source of these high        denomination notes, the Tribunal        312        was definitely of opinion that there was no other reason  to        suspect the genuineness of the account books in which  these        interpolations were found.  As a matter of fact the Tribunal        accepted these books of account as genuine and worked up its        theory  on the basis of the entries which obtained in  these        books of account.  The Tribunal had before it the  statement        of  large amounts received by the appellant from the  banks,        different  branches  of the appellant and its  Beoparees  or        merchants  which showed that between February 6,  1945,  and        January 11, 1946, amounts exceeding Rs. 1,000 aggegrating to        Rs.  5,04,713  had  been received by  the  appellant.   Even        though large amounts may have been paid out by the appellant        in  this manner between the said dates, the entries  of  the        balance  in Rokar and the balance in Almirah showed that  on        January  12, 1946, the balance in Rokar was  Rs.  26,234-3-9        and  the balance in Almirah was Rs. 2,81,397-10-0 the  total        cash balance thus aggregating to Rs. 3,10,681-13-9.   Nobody        had any inkling of the promulgation of the High Denomination        Bank Notes (Demonetization) Ordinance, 1946, on January  12,        1946, and if in the normal course of affairs and situated as        the  appellant  was,  the appellant kept  these  large  cash        balances in High Denomination Notes of Rs. 1,000 each, there        was  nothing  surprising  or  improbable  in  it.   If   the        appellant had to disburse such large sums of monies at short        notices at the different branches of the appellant and  also        to  its  Beoparees apart from financing the  Government  for        grain  purchase work which it used to carry on, it would  be        convenient  for it to handle these large sums of  monies  in        high  denomination  notes  of Rs. 1,000 each  and  the  most        natural  thing for it to do was to keep these cash  balances        in  as  many  high  denomination  notes  as  possible.   The        Tribunal  in  fact  took count of this  position  and  after        giving  due weight to all the circumstances arrived  at  the        conclusion  that  the appellant might be  expected  to  have        possessed as part of its business cash balance at least  Rs.        1,50,000 in the shape of high denomination notes on  January        12,   1946,   when  the  Ordinance   above   mentioned   was        promulgated.  This conclusion        313

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      of  the Tribunal could only be arrived at on the basis  that        the entries in the books of account in regard to the balance        in  Rokar  and  the  balance in  Almirah  were  correct  and        represented  the  true  state of affairs, in  spite  of  the        interpolations  and  -subsequent insertions which  had  been        made to bolster up the true case.        If  these were the materials on record which would  lead  to        the  inference that the appellant might be expected to  have        possessed as part of its cash balance at least Rs.  1,50,000        in the shape of high denomination notes on January 12, 1946,        when  the Ordinance was promulgated, was there any  material        on record which would legitimately lead the Tribunal to come        -to the conclusion that the nature of the source from  which        the  appellant derived the remaining 141  high  denomination        notes  of  Rs.  1,000  each  remained  unexplained  to   its        satisfaction.   If  the entries in the books of  account  in        regard  to the balance in Rokar and the balance  in  Almirah        were  held  to  be genuine, logically enough  there  was  no        escape  from the conclusion that the appellant  had  offered        reasonable  explanation  as to the source of  the  291  high        denomination  notes of Rs. 1,000 each which it  encashed  on        January 19, 1946.  It was not open to the Tribunal to accept        the genuineness of these books of account and accept the ex-        planation  of the appellant in part as to Rs.  1,50,000  and        reject  the same in regard to the sum of  Rs.  1,41,000-0-0.        Consistently  enough,  the Tribunal ought to  have  accepted        the’ explanation of the appellant in regard to the whole  of        the  sum  of Rs. 2,91,000 and held that  the  appellant  had        satisfactorily  explained  the encashment of  the  291  high        denomination notes of Rs. 1,000 each on January 19, 1946.        The  Tribunal, however, appears to have been  influenced  by        the  suspicions, conjectures and surmises which were  freely        indulged.  in  by the Income-tax Officer and  the  Appellate        Assistant Commissioner and arrived at its own conclusion, as        it  were,  by  a rule of thumb holding  without  any  proper        materials before it that the appellant might be expected  to        have  possessed  as part of its business,  cash  balance  at        least  Rs. 1,50,000 in the shape of high denomination  notes        on January 40        314        12, 1946,- a mere conjecture or surmise for which there  was        no basis in the materials on record before it.        The  Income-tax  Officer  had indented  in  support  of  his        conclusion  the  surrounding circumstances, viz.,  that  the        appellant  was  one  of  the  premier  Arhatdars  and  grain        merchants   of  Sahibgan1  with  branches,   doing   similar        business,  at  Nawgachia and Dhullian and all  these  places        were  very  important business centres  and  Sahibganj,  the        principal place of business, had gained sufficient notoriety        for smuggling foodgrains and other commodities to BenLal  by        country  boats,  and Dhulian which was just  on  the  Bihar-        Bengal  border was reported to be a great  receiving  centre        for  such  commodities, that the foodgrains licence  of  the        appellant  at  Nawgachia  was  also  cancelled  during   the        accounting  year for not keeping proper stock  accounts  and        the  appellant  was prosecuted under the  Defence  of  India        Rules but was given the benefit of doubt and was  acquitted,        that  the accounting year and the year preceding it as  also        the  year  succeeding  it  were  very  favourable  for   the        foodgrain  dealers  but the appellant though  he  had  large        capital  in  hand declared losses all through  from  1944-45        assessment  year  up to 1946-47 assessment  year,  the  loss        according to its books in the year under consideration being        to  the tune of about Rs. 46,000, that the appellant was  in        very  favourable  circumstances in which there  was  a  pos-

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      sibility  of its earning a considerable amount in  the  year        under consideration, that it also indulged in speculation (a        loss of about Rs. 40,000 shown in Nawgachia branch (in Kalai        account)),  in which profit in a single transaction or in  a        chain  of transactions could exceed the amounts involved  in        the  high  denomination notes, that even  in  the  disclosed        volume  of business in the year under consideration  in  the        Head  Office  and in branches there was possibility  of  its        earning  a  considerable sum as against which showed  a  net        loss  of  about Rs. 45,000 and that the  appellant  had  all        these  probable source or sources from which  the  appellant        could  have  earned  the  sum  of  Rs.  2,91,000  which  was        represented by the high denomination notes of Rs. 1,000                                    315        The  Appellate  Assistant Commissioner also  emphasized  the        said  aspect but based his conclusion mainly on  the  ground        that  the  appellant  had  failed to  prove  that  the  high        denomination  notes had their origin in capital and  not  in        profit and held that the Income-tax Officer was justified in        treating the sum of Rs 2,91,000 as secreted profits.        This  was the background against which the Tribunal came  to        its  own conclusion.  Even though it recognised that it  was        not  improbable that when very large sums, say in excess  of        Rs.  10,000 at a time were received, a fairly  good  portion        thereof  consisted  of high denomination notes and  as  high        denomination  notes were valid tender and nobody could  have        foreseen that they would be demonetised suddenly in  January        1946,  there was nothing out of the way in  persons  dealing        with  tens of thousands of rupees and whose balances ran  to        lakhs,  being  in possession of a fair proportion  of  their        balances  in  the shape of high denomination  notes.   While        recognizing this probability of the appellant having been in        possession of a fair proportion of its balances in the shape        of  high  denomination  notes,  the  Tribunal  unconsciously        though  it  was, fell into an error when it  held  that  the        appellant  might be expected to have possessed at least  Rs.        1,50,000 in the shape of high denomination notes as part  of        its  cash balance, thus treating the remaining Rs.  1,41,000        in the high denomination notes of Rs. 1,000 each as  outside        the purview of these cash balances.        Unless  the  Tribunal had at the back its mind  the  various        probabilities  which had been referred to by the  Income-tax        Officer as above it could not have come to the conclusion it        did  that  the  balance of Rs  1,41,000  comprising  of  the        remaining 141 high denomination notes of Rs. 1,000 each  was        not satisfactorily explained by the appellant.        If the entries in the books of account were genuine and  the        balance  in Rokar and the balance in Almirah on January  12,        1946,  aggregated  to Rs. 3,10,681-13-9 and if  it  was  not        improbable that a fairly good portion of the very large sums        received  by the appellant from time to time, say in  excess        of Rs. 10,000 at a time        316        consisted of high denomination notes, there was no basis for        the   conclusion  that  the  appellant  had   satisfactorily        explained  the  possession  of  Rs.  1,50,000  in  the  high        denomination notes of Rs. 1,000 each leaving the  possession        of  the balance of 141 high denomination notes of Rs.  1,000        each  unexplained.   Either the Tribunal did not  apply  its        mind  to the situation or it, arrived at the  conclusion  it        did merely by applying the rule of thumb in which event  the        finding  of  fact  reached  by it  was  such  as  could  not        reasonably be entertained or the fact found were such as  no        person  acting judicially and properly instructed as to  the        relevant  law could have found, or the Tribunal in  arriving

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      at its findings was influenced by irrelevant  considerations        or indulged in conjectures, surmises or suspicions in  which        event also its finding could not be sustained.        Adverting  to the various probabilities which  weighed  with        the  Income-tax Officer we may ’observe that  the  notoriety        for smuggling foodgrains and other commodities to Bengal  by        country  boats  acquired  by  Sahibgunj  and  the  notoriety        achieved  by  Dhulian as a great receiving centre  for  such        commodities  were merely a background of suspicion  and  the        appellant  could not be tarred with the same brush as  every        Arhatdar and grain merchant who might have been indulging in        smuggling  operations, without an iota of evidenec  in  that        behalf.   The  cancellation  of  the  foodgrain  licence  at        Nawgachia  and the, prosecution of the appellant  under  the        Defence  of India Rules was also of no consequence  inasmuch        as the appellant was acquitted of the offence with which  it        had  been  charged and its licence also was  restored.   The        mere  possibility  of  the  appellant  earning  considerable        amounts   in  the  year  under  consideration  was  a   pure        conjecture  on  the part of the Income-tax Officer  and  the        fact  that the appellant indulged in speculation  (in  Kalai        account)  could not legitimately lead to the inference  that        the profit in a single transaction or in a chain of transac-        tions  could  exceed  the  amounts,  involved  in  the  high        denomination  notes,-this  also  was a  pure  conjecture  or        surmise  on the part of the Income-tax Officer.  As  regards        the disclosed volume of business in the year        317        under  consideration in the Head Office and in branches  the        Income-tax Officer indulged in speculation when he talked of        the possibility of the appellant earning a considerable  sum        as  against which it showed a net loss of about Rs.  45,000.        The  Income-tax  Officer indicated the  probable  source  or        sources  from which the appellant could have earned a  large        amount  in the sum of Rs. 2,91,000 but the conclusion  which        he arrived at in regard to the appellant having earned  this        large  amount  during the year and which  according  to  him        represented  the  secreted profits of the appellant  in  its        business was the result of pure conjectures and surmises  on        his  part and had no foundation in fact and was  not  proved        against the appellant -on the record of the proceedings.  If        the  conclusion  of the Income-tax Officer was  thus  either        perverse or vitiated by suspicions, conjectures or  surmises        the finding of the Tribunal was equally perverse or vitiated        if  the Tribunal took count of all these  probabilities  and        without  any rhyme or reason and merely by a rule of  thumb,        as  it were, came to the conclusion that the  possession  of        150   high  denomination  notes  of  Rs.  1,000   each   was        satisfactorily  explained by the appellant but not  that  of        the  balance  of 141 high denomination notes  of  Rs.  1,000        each.        The  position  as  it  obtained in  this  case  was  closely        analogous to that which obtained in Messrs.  Mehta Parikh  &        Co. v. The Commissioner of Income-tax, Bombay (1).  In  that        case   the  assessee  had  to  satisfactorily  explain   the        possession  of 61 High Denomination Notes of Rs. 1,000  each        and  the Tribunal came to the conclusion that  the  assessee        had  satisfactorily explained the possession of 31 of  these        notes  and  not  of the remaining 30.  The  High  Court  had        treated  the finding of the Tribunal as a finding  of  fact.        It was held by this Court that the entries in cash-book  and        the  statements  made  in the affidavit in  support  of  the        explanation, which were binding on the Revenue and could not        be  questioned, clearly showed that it was quite within  the        range  of  possibility  that  the  assessee  had  in   their

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      possession  the 61 High denomination notes on  the  relevant        date and their explanation in that        (1)  [1956] S.C.R. 626.        318        behalf   could  not  be  assailed  by  a  purely   imaginary        Calculation of the nature made by the income-tax officer  or        the Appellate Assistant Commissioner.  It further held  that        the  Tribunal made a wrong approach and while accepting  the        assessee’s  explanation with regard to 31 of the  notes,  it        had absolutely no reason to exclude the rest as not  covered        by  it  in  the absence of any evidence  to  show  that  the        excluded  notes  were profits earned by  the  assessee  from        undisclosed sources.  The assessee having given a reasonable        explanation  the Tribunal could not, by applying a  rule  of        thumb  discard it so far as the rest were concerned and  act        on  mere  surmise.  In arriving at its decision  this  Court        referred to the case of Chunilal Ticamchand Coal Co. Ltd. v.        Commissioner of Income-tax, Bihar and Orissa (1) and  stated        that  the  case before it should also  have  been  similarly        decided by the High Court in favour of the assessee.        A decision of the Allahabad High Court reported in in Kanpur        Steel   Co.  Ltd.  v.  Commissioner  of   Incometax,   Uttar        Pradesh(’) may also be noted in this context.  The  assessee        there  encashed  32  currency notes of  Rs.  1,000  each  on        January  12,  1946, when the High  Denomination  Bank  Notes        (Demonetisation) Ordinance, 1946, came into force, and  when        the  Income-tax Officer called upon it to explain how  these        currency  notes  came  into  its  possession,  the  assessee        claimed that the notes represented part of its cash  balance        which,  on that date, stood at Rs. 34,313.   The  Income-tax        Officer rejected the explanation and assessed the amount  of        Rs. 32,000 represented by these currency notes as suppressed        income  of the assessee from some undisclosed  source.   The        Tribunal  took into account the statement of sales  relating        to  a  few days preceding the date of encashment  and  found        that  the highest amount of any one single  transaction  was        only  Rs.  399.   The  Tribunal  also  referred  to  another        statement  of the daily cash balances of the  assessee  from        December  20, 1945, to January 12, 1946, and noted that  the        cash  balance of the assessee was steadily increasing.   The        Tribunal, however, estimated that high denomination        (1) [1955] 27 I.T.R. 602.        (2) [1957] 32 I.T.R. 56.        319        currency  notes  to the value of Rs. 7,000 only  could  form        part  of  the cash balance of the  assessee.   It  therefore        upheld  the  assessment to the extent of Rs. 25,000.   On  a        reference to the High Court it was held (1) that the  burden        of  proof lay upon the Department to prove that the  sum  of        Rs.  32,000  represented suppressed income of  the  assessee        from  undisclosed  sources, and the burden was  not  on  the        assessee   to   prove  how  it  had  received   these   high        denomination  currency notes; for, until the  Demonetisation        Ordinance  came into force high denomination currency  notes        could  be used as freely as notes of any lower  denomination        and no one had any idea that it should be necessary for  him        to  explain  the possession of  high  denomination  currency        notes,  the  assessee had naturally not kept  any  statement        regarding  the receipt of these currency notes, and  it  was        for  the first time on January 12, 1946, when the  Ordinance        came  into force, that it became necessary for the  assessee        to  explain its possession of these currency notes and  (ii)        that  the explanation given by the assessee that  the  notes        formed  part of the cash balance of Rs. 34,000 and  odd  was        fairly satisfactory and was not found by the Tribunal to  be

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      false;  the  statement of sales was hardly relevant  to  the        question; the Department, in relying on the entries relating        to the bills of each day committed an error and no inference        should  have  been  drawn from them;  that  any  one  single        transaction  did  not exceed Rs. 399 did  not  preclude  the        possibility  of payment in high denomination notes for  such        transaction;   therefore,   the   Tribunal   rejected    the        explanation  of the assessee on surmises, and there  was  no        material for the Tribunal to hold that the sum of Rs. 25,000        represented   suppressed   income  of  the   assessee   from        undisclosed sources.        In arriving at the above decision the High Court referred to        the  cases of Mehta Parikh & Co. v. Commissioner of  Income-        tax,  Bombay (1) and Chunilal Ticamchand Coal Co.,  Ltd.  v.        Commissioner of Incometax, Bihar and Orissa (2).        It is, therefore, clear that the Tribunal in arriving at the        conclusion it did in the present case indulged in        (1) [1956) S.C,R. 626,        (2) [1955] 27 I.T.R. 6o2        320        suspicions,  conjectures and surmises and acted without  any        evidence  or  upon  a  view of the  facts  which  could  not        reasonably be entertained or the facts found were such  that        no  person acting judicially and properly instructed  as  to        the  relevant law could have found, or the finding  was,  in        other  words,  perverse  and  this  Court  is  entitled   to        interfere.        We are therefore of opinion that the High Court was  clearly        in   error  in  answering  the  referred  question  in   the        affirmative.   The  proper answer should have  been  in  the        negative having regard to all the circumstances of the  case        which we have adverted to above.        The  appeals will accordingly be, allowed, the judgment  and        order  passed  by the High Court will be set aside  and  the        referred  question  will be answered in the  negative.   The        appellant will be entitled to its costs of the reference  in        the High Court and of these appeals in this Court as against        the respondent.        Appeals allowed.