C.S.P. Singh, J.
1. These reference applications under Section 66(2) of the Indian Income-tax Act, 1922, are based upon identical questions of fact, and are as such being disposed of by a common order. The assessee by these applications seeks a reference of as many as twelve questions of law which relate to an ex parte best judgment assessment made against the assessee.
2. Proceedings under Section 34(1A) were initiated against the assessee.The assessee did not file any return and neither did he comply with thenotice under Section 22(4) of the Act. The Income-tax Officer, thereafter,proceeded to make an ex parte best judgment assessment. He found thatthe aggregate sales of cloth and yarn during the period were as under:
Assessment year Aggregate salesRs.1942-43 1,31,84,1801943-44 2,27,30,7001944-45 3,85,46,6961945-46 3,57,20,8821946-47 2,05,19,6001947-48 2,25,56,600
3. In these years, he held that the dealers in yarn and cloth had made huge profits which were not entered in their books and that in another case of Kanpur, which was comparable to that of the assessee, the secret profits were to the extent of 5% between 1945 and 1947. The Income-tax Officer held that if profits were computed on this basis, the assessee's undisclosed income would work out to Rs. 81,00,000. He then referred to the fact that the assessee's case had been referred to the Investigation Commission under Section 5(1) of Act XXX of 1947, and that the assessee had admitted before the Commission that, (i) it had earned secret profits amounting to Rs. 31 lakhs in its yarn and cloth business during the period September 1, 1943, to December 31, 1944; (ii) it had concealed its investment in jewellery, expenses, etc., to the extent of over Rs. 17 lakhs. He also referred to the finding given by the Commission that the assessee had made purchases of jewellery outside the accounts of an estimated amount of Rs. 18'25 lakhs and had spent rupees one lakh in alteration and renovation of properties, and rupees three lakhs in the marriages in the partner's family, and rupees two lakhs by way of personal expenses, and that thedeposit in the assessee's accounts which were alleged to represent the sale proceeds of jewellery were really the assessee's secreted income. He then referred to the note in two letters sent by the assessee to the Inspecting Assistant Commissioner of Income-tax, Delhi, Central Range, wherein it was admitted on behalf of the assessee that its secret profits in cloth and yarn business during the period September 1, 1943, to December 31, 1944, amounted to Rs. 13 lakhs and that its concealed income had been utilised in the following manner :
Representing cost of jewellery purchased out of undisclosed income in the accounting year 1943-44.
Introducedin the books of the firm in the formof fictitious sale of jewellery in the accounting year 1944-45.
Representingpersonal expenses and expenses in marriages in the families of partners incurred out of thefirm's secreted income.
4. The Income-tax Officer, however, made his own estimate of the income of the assessee for the period from 1942-43 to 1947-48, by taking the following facts into consideration:
(i) the general market condition during the material period ;
(ii) the admissions made by the assessee before the Investigation Commission and the I.A.C., Central Range, New Delhi; and
(in) the facts found by the Commission. The I.T.O. on these considerations held that the assessee's concealed income from business could be reasonably estimated at Rs. 37 lakhs.
5. An appeal was filed before the Appellate Assistant Commissioner by the assessee. The appellate authority reduced the estimate made by the Income-tax Officer. In making the reductions, he placed reliance on the estimates made by the Investigation Commission. The assessee thereafter filed an appeal before the Tribunal. The Tribunal agreed with the reduction made by the Appellate Assistant Commissioner and approved of the reasons given by the appellate authority for making the reduced estimate. It repelled the contention of the assessee that the estimate made by the Income-tax Officer was based solely on the findings given by the Investigation Commission on the ground that the order of the Income-tax Officer disclosed that, apart from referring to the finding of the Investigation Commission, the Income-tax Officer had exercised his own independent judgment in the matter and had taken into account a number of other circumstances. In this view of the matter, it dismissed the appeal filedby the assessee. Counsel for the assessee had, contended that the Income-tax Officer was not justified In referring to the report of the Investigation Commission and the material collected by it for the purpose of making the estimate, and that the estimates made were arbitrary and conjectural. It is true that the Act under which the Investigation Commission was constituted was declared to be ultra vires by the Supreme Court, but it does not follow as a matter of law that the material collected by the Investigation Commission could not be relied upon by the Income-tax Officer; As has been seen, the Income-tax Officer relied upon the admissions made by the assessee in his two letters and, after referring to the findings of the Commission, made an estimate of the income of the assessee which was in excess of that made by the Investigation Commission. In making this enhanced estimate, the Income-tax Officer took into consideration a number of circumstances which have already been tabulated above. The estimate as such cannot be said to be arbitrary, capricious or conjectural. It is supported by the relevant materials on the record. The questions raised are mostly of fact and those which have a semblance of questions of law, are based upon a misreading of the order of the Income-tax Officer.
6. All the applications are accordingly dismissed with costs. There shallbe one set of costs which we assess at Rs. 100.