COMMISSIONER OF INCOME TAX Vs. AJAY HARI DALMIA

JUDGEMENT

(1.) THE present petition under S. 256(2) of the INCOME TAX ACT, 1961, seeks a reference of the following question :

(2.) THE question has arisen because the assessee who had declared an income of Rs. 1,16,490 was assessed by the ITO on an income of Rs. 1,64,212 which was reduced in appeal to Rs. 1,46,490. According to the Department, the assessee had certain concealed income which can be determined from the fact that household expenses had been underestimated and travelling expenses of family and club expenses as well as medical expenses which had been reimbursed had not been shown properly. This is what has led to the addition made to the returned income.

(3.) AN appeal was taken by the Department against the cancellation of the penalty and cross - objections were filed by the assessee on the ground that the learned CIT in appeal should have given a finding on merits also. Both the appeal and the cross -objection failed. This has led to the application before us. The Tribunal had also rejected the application under S. 256(1) on the ground that the finding by the Tribunal regarding lack of reasonable opportunity was a finding of fact and the judgment in Guduthur Bros. vs. ITO (1960) 40 ITR 298 (SC), was distinguishable as found by the Tribunal.