KARSONDAS RANCHHODDASS Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THE facts and the circumstances under which this reference arose have already been stated in our order of 16th July, 1969, and it is unnecessary to repeat them. By that order for the reasons stated in the penultimate paragraph we reframed one of the questions and called for a fresh statement of the case. The questions as reframed are as follows :

(2.) THE assessment year with which we are concerned is 1954 -55 corresponding to the account year 2009 Samvat year. The dispute concerns an item of Rs. 44,190 which the assessee claimed as a loss incurred in the year of account from his business of purchase and sale of shares. When the matter came before us on the earlier occasion we found that the Department had merely taken into account the position of dealings with shares by the assessee in the years prior to the assessment year in question, namely, 1954 -55. It was urged before us that the dealings of the assessee in the subsequent years to which a reference had been made in the statement of the case could also have been taken note of and that the Tribunal erred in ignoring those facts of the assessee's dealings with shares in the subsequent years. By our order of 16th July, 1969, we accepted the contention of the assessee and, after reframing the question, called for a fresh statement of the case from the Tribunal with advertence to the facts of the assessee's dealings subsequent to the asst. year 1954 -55. These dealings are summarised in a statement which formed part of the first statement of the case and is marked Annexure "B". In that statement a summary of the dealings by the assessee from the asst. year 1942 -43 till the asst. year 1960 -61 has been given. The summary was prepared on the basis of the assessment orders for those years. Those assessment orders are included in Annexure "A" to the first statement of the case. A glance at Annexure "A" shows that only the orders up to the asst. year 1958 -59 were included and that the orders for the asst. yrs. 1959 -60 and 1960 -61 were not included. We, therefore, directed the Tribunal to exclude the facts pertaining to those two assessment years. After giving our findings we had ordered as follows :

(3.) BEFORE we proceed to answer the reference, it is necessary to notice one contention which Mr. Hajarnavis raised against the new statement of the case dt. 8th June, 1970. He urged that the statement of the case is not in compliance with the judgment of this Court dt. 16th July, 1969, and that, on the other hand, the Tribunal has not merely stated the facts but has gone further and given a fresh finding. He objected to the finding given in paragraph 16 as being entirely unwarranted and uncalled for having regard to the terms of our judgment dt. 16th July, 1969. He also urged that the Tribunal has done something which the judgment of this Court expressly asked it not to do, namely, not to take into account the facts and the circumstances of the assessee's dealings in shares for the years 1959 -60 and 1960 -61. This is clear, he urged, from the first sentence of paragraph 16, which we have quoted above. The last paragraph, moreover, gives a finding which the Tribunal was never called upon to do. He, therefore, urged initially that this reference should not be accepted and that the matter should be sent down again to the Tribunal to make a fresh reference. Now the criticism levelled against the Tribunal's new statement of the case and particularly against paragraph 16 thereof, is, in our opinion, somewhat justified. In our judgment of 16th July, 1969, we had expressly asked the Tribunal not to have regard to the dealings of the assessee in shares for the asst. yrs. 1959 -60 and 1960 -61. This is what we said :