PRATAP NARAIN JAISWAL Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THIS is an assessee's application under Section 256(2) of the Income-tax Act, 1961, hereinafter referred to as the "Act". It relates to the assessment year 1975-76. The prayer contained in this application is that the Income-tax Appellate Tribunal may be directed to refer the eight questions, mentioned in the application to this court for its opinion. When this application was taken up, counsel for the applicant informed us that relief in regard to the items covered by questions Nos. 7 and 8 has since been granted to the applicant by the Tribunal and as such these questions do not survive.

(2.) AS regards questions Nos. 1 to 6, which are, indeed, connected questions, the submission made by counsel for the applicant is that the finding of the Tribunal that the persons, who, according to the applicant, had deposited various amounts of money with the applicant, had no means wherefrom they could have made the deposits alleged to have been made by them, is perverse, inasmuch as no evidence had been produced by the Department to rebut the statements of those persons, made on oath. The copies of the statements of the persons concerned have been attached as annexures to this application. We have gone through not only the appellate order of the Tribunal and the order dismissing the applicant's application under Section 256(1) of the Act but also gone through the statements of the persons aforesaid and are of the opinion that on the facts of the instant case, it cannot be said that any of these questions Nos. 1 to 6 are questions of law arising out of the appellate order of the Tribunal. It is true that in the normal course, a statement made on oath is to be accepted in the absence of any rebuttal but, it cannot be said that it is a rule of universal application. The question will have to be decided on the facts of each case. In the instant case, the persons who were examined as witnesses by the applicant appear to have been cross-examined at length by the Income-tax Officer and the Tribunal agreeing with the finding, in this behalf, of the Appellate ASsistant Commissioner, has held that reading the statement of these persons as a whole, it was apparent that none of them was in a position to deposit the amounts which they are alleged to have deposited with the applicant. There may be intrinsic evidence even in a statement of oath, if read as a whole, which may be sufficient to disbelieve the statement made on oath. In the instant case, the Tribunal has obviously come to the conclusion that the statement of the persons concerned was intrinsically not worthy of credence. This, in our opinion, is a finding of fact based on appraisal of evidence and it is for this reason that we are of the opinion that none of these questions Nos. 1 to 6 is a statable question of law.