COMMISSIONER OF INCOME TAX Vs. KOCHAMMED K K

JUDGEMENT

(1.) THE Revenue is the petitioner herein. This petition is filed under Section 256(2) of the Income-tax Act, 1961, praying that this court may direct the Income tax Appellate Tribunal to refer the five questions of law enumerated in paragraph 7 of the original petition, as arising out of the appellate order passed by the Income tax Appellate Tribunal dated June 22, 1981, and rendered in I. T. A. No. 515/Coch. of 1978-79, for the decision of this court. THE late Smt. Nafeesa Beevi was an assessee to income-tax. She was assessed as an individual. THE respondents are the legal heirs of Nafcesa Beevi who had filed her return for the year 1973-74 declaring a total income of Rs. 37,335, specifying it as winnings from lottery. It is common ground that Smt. Nafeesa Beevi won the first prize of the 47th Kerala State Lottery. She received an amount of Rs. 1,96,675 after deducting a sum of Rs. 98,325 towards income-tax from the prize amount of Rs. 2,85,000. THE assessee put forward the plea that, out of the sum of Rs. 1,80,675 her share of income is only 37,335. It was submitted that she purchased the ticket jointly with her four brothers with the understanding that, in case the ticket wins the prize, the prize amount will be shared by them equally. This plea was rejected by the Income-tax Officer. He assessed the entire amount of Rs. 1,40,000 in the hands of Smt- Nafeesa Beevi as her income. THE order of assessment was affirmed in appeal by the Appellate Assistant Commissioner. THE Appellate Tribunal, however, accepted the plea of the assessee that the assessee was liable to tax only on one-fifth of the prize amount. It is thereafter that the Revenue moved the Appellate Tribunal under Section 256(1) of the Income-tax Act, 1961, to refer certain questions of law which, it was alleged, arose out of the appellate order of the Tribunal dated June 22, 1981. THE Appellate Tribunal, by order dated October 31, 1981, rejected the petition. It is thereafter that the Revenue has moved this court under Section 256(2) of the Income-tax Act to compel or direct the Appellate Tribunal to refer the five questions of law formulated in paragraph 7 of the original petition for the decision of this court.

(2.) WE heard counsel for the Revenue, Mr. N. R. K. Nair, as also counsel for the respondents--the legal heirs of the assessee, the late Smt. Nafeesa Beevi. Before the Income-tax Officer, the assessee had filed the affidavits of four of her brothers wherein it was stated that the ticket was purchased jointly by Smt. Nafeesa Beevi and her four brothers. An affidavit, of the person who sold the ticket was filed. He deposed that the five persons jointly purchased the ticket and they signed on the reverse side of the ticket in his presence. The assessee also requested the Income-tax Officer to summon the ticket as evidence of joint ownership and also the seller pf the ticket for examination. These requests were not acceded to. The Appellate Tribunal held that the affidavits filed by the four brothers of Smt. Nafeesa Beevi and also by the seller of the ticket cannot be brushed aside. If it was the case of the Revenue that the affidavits are not reliable, it was open to the Income-tax Officer to summon the deponents for cross-examination or require the assessee to produce better evidence. It was not done. The Appellate Tribunal also referred to the affidavit filed by the seller of the ticket who categorically stated that the signatures were affixed on the reverse side of the ticket by Smt. Nafeesa Beevi and four of her brothers at the time of purchase of the ticket and not later. In the light of the uncontradicted affidavits filed by the four brothers of Smt. Nafeesa Beevi and the affidavit filed by the seller of the ticket, the Appellate Tribunal held that it is not possible to reject the contention of the assessee that she had purchased the ticket jointly with the other four brothers. On this finding, the Appellate Tribunal further held that Smt. Nafeesa Beevi cannot be considered to have received the full prize amount in her own right. The Appellate Tribunal concluded that the probabilities in the case pointed out that there is an understanding between Smt. Nafeesa Beevi and her four brothers for the sharing of the prize amount if it was declared on the ticket purchased. WE are of the view that, in considering the probabilities of the case, the conclusion arrived at by the Appellate Tribunal to the effect that the ticket was jointly purchased by Smt. Nafeesa Beevi and her four brothers and so Smt. Nafeesa Beevi was liable to be assessed only on one fifth of the prize amount of Rs. 2,85,000 and not on the entire amount is a pure finding of fact. The said finding entered by the Appellate Tribunal is based on substantial material. The materials relied on by the Appellate Tribunal are the four affidavits filed by the brothers of Smt. Nai'eesa Beevi and also the affidavit filed by the seller of the ticket. These affidavits were not contradicted. The Revenue did not indicate, at any point of time, that these affidavits will not be accepted and that the deponents should be produced for cross-examination. In the light of the uncontradicted affidavits filed by the four brothers of Smt. Nafeesa Beevi and the affidavit filed by the seller of the ticket on which reliance was placed by the Appellate Tribunal to hold that the deceased Nafeesa Beevi was only the part owner of the ticket and not the full owner and she is liable to be assessed only on one-fifth of the prize amount is the only possible conclusion that could be readied on facts.