1. JUDGMENT : N. D. OJHA, J. - The assessee-applicant was carrying on the business of manufacture and sale of steel furniture in the assessment year in question, namely, 1975-76 as an unregistered firm. The ITO rejected the account books produced by the applicant inter alia on the grounds that they appeared to have been written in one sitting, that the purchases and sales were unverified, that the stock registers were neither maintained nor produced and that the purchases said to have been made from one M/s. Vijai Kumar and Sons did not appear to be genuine. In support of the assertion that certain purchases had been made by the applicant from M/s. Vijai Kumar and Sons, some entries on a letter head of M/s. Vijai Kumar and Sons were bogus. He came to the conclusion that the letter head appeared to have been got printed by the assessee locally. On these grounds purchases said to have been made from M/s. Vijai Kumar and Sons to the tune of Rs. 12,000 were dibelieved.
2. Against the order of assessment that was passed by the ITO an appeal was preferred by the applicant which was allowed. Against that order an appeal was preferred by the revenue before the ITAT, Allahabad Bench B hereinafter referred to as the Tribunal) which was allowed in part. The Tribunal upheld the finding of the ITO in regard to the alleged purchases made by the applicant from M/s. Vijai Kumar and Sons. Aggrieved, the applicant made an application before the Tribunal under s. 256(1) of the IT Act, 1961, for referring the following question of law to this Court for its opinion :
1. Whether, the assessee had discharged its burden to prove that the purchases from M/s. Vijai Kumar and Sons were genuine ?
2. Whether, the assessee had discharged its burden to prove that the purchases from M/s. Vijai Kumar and Sons were genuine ?
3. Whether, under the facts and circumstances of the case, the inference about non-existence of the firm M/s. Vijai Kumar and Sons is justified ?
This application was dismissed by the Tribunal by its order dt. 30-11-1982. Thereupon, the applicant made this application under s. 256(2) of the Act with a prayer that the Tribunal may be directed to draft a statement of the case and to refer to this Court such question or questions of law as may arise out of the appellate order of the Tribunal. Even though the questions of law were not formulated in this application under s. 256(2) of Act, counsel for the applicant urged at the time when this application was taken up for orders that the same questions was taken up for orders that the same questions of law arose which were stated by the applicant in its application under s. 256(1) of the Act referred to above.
3. It was urged by Counsel for the applicant that the purchases made from Vijai Kumar and Sons had been disbelieved by the ITO as well as by the Tribunal mainly on the ground that a registered letter was sent to M/s. Vijai Kumar and Sons for verification as to whether these goods had been purchased by the applicant or not and the registered letter was received back with an endorsement that there was no such firm. According to Counsel for the applicant there was a letter on record dt. 25-10-1977 addressed to the proprietor of the applicant firm which explained the circumstance in which the aforesaid registered letter came back with the endorsement that there was no such firm as M/s. Vijai Kumar and Sons. It has been urged that even though the said letter was on the record, the same was not placed before the Tribunal by the department.
4. Having heard Counsel for the parties, we are of the opinion that no question of law arises from the order of the Tribunal on the above score. The only material on which reliance has been placed by Counsel for the applicant in support of the assertion that a letter dt. 25-10-1977, written by M/s. Vijai Kumar and Sons was on record is copy of the application under s. 256(1) of the Act filed as an annexure to a supplementary affidavit. According to this copy the aforementioned letter dt. 25-10-1977, was addressed not to the ITO but to the proprietor of the assessee firm. If that was so, the said letter could have been on the record only if it was filed by the applicant. Nothing has been brought to our notice by Counsel for the applicant which may indicate the date on which the said letter was filed by the applicant or the name of the officer before whom the said letter was filed. Since there is no reference in the appellate order of the Tribunal to the argument that the aforesaid letter dt. 25-10-1977, was on record but was being suppressed, it would, in view of the decision of the Supreme Court in Tika Ram & Sons v. Its Workman AIR 1960 SC 198, be legitimate to infer that this point had not been urged before the Tribunal. In no affidavit, not even in the supplementary affidavit mentioned above filed in this Court, has it been specifically stated with reference to the aforesaid letter dt. 25-10-1977, that it was argued before the Tribunal that the said letter was on record and was being suppressed by the Tribunal has not referred to this argument in its appellate order. No effort is even stated to have been made by the applicant before the ITO or the AAC or even before the Tribunal to summon either the account books of firm M/s. Vijai Kumar and Sons or even the proprietor or any partner of the said firm as the case may be in proof of the assertion that certain purchases had been made by the applicant from the said firm. If any such firm was in existence there should have been no difficulty in doing so.
5. In the result, we find no merit in this applications. It is accordingly dismissed but in the circumstances of the case, there would be no order as to costs.