JAN MOHAMMED Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THIS is a reference under Section 68(1) of the Indian Income -tax Act and the question referred to us for opinion is as follows : 'Whether there was material to come to the conclusion that the money with which the bus was purchased was advanced to the wife by the husband so as to attract the operation of the Section 16(3) (a) (iii) of the Income -tax Act?'

(2.) THE assessee carries on business in Haldwani and Naini Tal. There was, however, a bus No. 104 U. S. R. registered in the name of of the assessee's wife. The income from this bus amounting to Rs. 2520/ - during the year in question was paid to the wife of the assessee by the Kumaon Motors Union who were running the bus. The Income -tax Officer claimed that the bus belonged to the assessee and his wife was merely a benamidar for him. He treated the income from the bus as the income of the assessee. The assessee, however, denied that the bus belonged to him and asserted that the bus belonged to his wife who had purchased it out of the money which she had received from her father at the time of his death in 1934. The assessee, however, informed the Income -tax Officer that he could not produce any evidence to prove how and when that money came into the hands of his wife. When the case was heard by the Income -tax Appellate Tribunal, the two learned Members differed an the point whether it could be presumed that the bus belonged to the assGssee, there being no evidence or circumstance to establish the same. The point, on which they differed, was formulated as follows :

(3.) These rules do not, however, show that it was intended that the third Member should finally dispose of the appeal when only some point or points had been referred to him for decision. In our view, the case with the opinion of the third Member should go back to the Tribunal for final decision. The Tribunal, when finally disposing of the appeal, may, no doubt, allow other points to be raised before it, if they consider it proper. The third Member, however, can only answer the point or points that were referred to him for decision and on which there was a difference of opinion.