COMMISSIONER OF INCOME TAX Vs. A M SIMLOT

JUDGEMENT

(1.) THIS is an application moved by the CIT, Jaipur, under s. 256(2) of the IT Act, 1961 (Act No. 43 of 1961) (hereinafter referred to as "the Act"), requiring the Tribunal, Jaipur Bench, Jaipur, to state the case and to refer the following point of law allegedly arising out of the order of the Tribunal to this Court, for our opinion :

(2.) BRIEFLY stated, the facts of the case, out of which this application arises, are these : One Dr. L. M. Simlot (since dead), now represented by his two sons and widow (hereinafter referred to as "the assessee "), was an individual medical practitioner and in the relevant asst. yr. 1966-67 was in the employment of the Government of Rajasthan at Moti Katla Dispensary, Jaipur, and apart from the salary income, he had also income from private practice. The said assessee was not keeping accounts of his private practice for the relevant asst. yr. 1966-67. The assessee filed several returns declaring his income from profession, which varied from Rs. 50,000 to Rs. 25,000 but finally the assessee declared his income from profession at Rs. 48,802 in his return dated April 12, 1968. According to the assessee, gross professional receipt was Rs. 93,302, but he had actually realised Rs. 50,802. A deduction of Rs. 2,000 towards expenses was claimed to arrive at the net figure of Rs. 48,802 in the return of income. Information was gathered by the ITO to the effect that the assessee had issued essentiality certificates to the employees of the postal Department, and gross receipts were Rs. 1,09,489. The assessee was confronted with these figures on October 6, 1967, and was allowed to rebut the figures, but he simply replied that he got only the amount shown by him in his final return, and the same was recorded in his registers. The ITO relying on the amount of fees received by the assessee, as shown in the registers of postal Department, on the basis of essentiality certificates issued by the assessee, held that the assessee received from the postal department an amount of Rs. 1,09,489. The assessee was assessed accordingly.

(3.) THE contention of Mr. Mehta, the learned advocate for the Revenue, is that the question sought to be referred to this Court is a question of law, inasmuch as the finding of fact arrived at by the Tribunal is merely based on conjectures and surmises, and is perverse. In support of his contention, that if the finding of fact arrived at by the Tribunal is perverse, then it is a question of law, which should be referred for opinion to this Court, the learned advocate has placed reliance on Oriental Investment Co. (P) Ltd. vs. CIT (1969) 72 ITR 408 (SC), CIT vs. Daulat Ram Rawatmull (1973) 87 ITR 349 (SC), G. Venkataswami Naidu & Co. vs. CIT (1959) 35 ITR 594 (SC) and CIT vs. Dr. A. K. Sharma (Certified copy of the judgment (order) dated July 31, 1979, in D.B.I.T. Ref. Case No. 64 of 1978) (See p. 23 infra). On the contrary, the learned advocate for the assessee contends that whether or not the assessee had concealed the particulars of income is purely a question of fact, which does not call for any reference. In support of his contention, the learned advocate has placed reliance on CIT vs. Gokuldas Harivallabhdas (1978) CTR (Raj) 85 : (1958) 34 ITR 98 (Bom), Addl. CIT vs. Gem Palace 1975( CTR (Raj) 15 :( 1975) 98 ITR 640 (Raj), Addl. CIT vs. Noor Mohd. & Co. (1974) 97 ITR 705 (Raj) and CIT vs. Goswami Smt. Chandralata Bahuji (1980) 125 ITR 700 (Raj).