1. We are not satisfied that the statements in the case referred are sufficient to enable us to determine the question raised thereby. We are, therefore, referring the case back to the Appellate Tribunal to make amendments thereto by such additions or alterations as this Court is going to indicate in this behalf by this order.
2. I would, in this connexion, refer to paragraph 9 of the Tribunal's statement. It reads:
'9. The question of law suggested by the High Court of Orissa is as follows:
'Whether there was sufficient evidence in the case to hold that the timber and yarn businesses have not severed from the joint Family assets?' Following the decision of the Bombay High Court in -- 'Jethabhai Hirji and Co. v. Commissioner of Income-Tax, Bombay City' : 17ITR533(Bom) and the observations of Sir George Rankin referred to in the High Court's order, we venture to suggest the following question:
'Whether there was evidence upon which it was open to the Appellate Tribunal to come to the decision that the timber and yarn businesses continued to be in the ownership of the Hindu Undivided Family of Jagannathram Gangaram during the relevant accounting period commencing on 9-11-42 and ending on 29-11-43?' The question of law suggested by the High Court, with all respects, appears as if the High Court is an appellate authority over the decision of the Appellate Tribunal.'
3. The exception, taken by the Appellate Tribunal that this Court appears to attribute to itself the authority of an appellate Court over the decision of the Appellate Tribunal, is based upon misconception or misapprehension of law. I shall, in this context, invite reference to the reasons why this court was not satisfied (within the meaning of Sub-section (2) of Section 66 of the Act) with the correctness of the decision of the Appellate Tribunal. They have been embodied in paras. 12 and 13 of our decision, dated, 22nd March, 1950. The validity of the said reasons is reinforced by the following comments of the learned author (A. C. Sampath Iyengar) summarising the result of judicial pronouncements of this country as well as of England (p. 850, 3rd Edn., published in the year 1947):
'The correct legal inference to be drawn from stated findings of fact would be a questionof law.
* * * If findings of fact have been arrived at by attributing any wrong legal effect to the acts and conduct of a party', or by a misdirection, or by ignoring onus or conjecture, it is competent for the High Court to review. A question of law would arise if there were no material to support a conclusion of fact, or irrelevant matters have been relied upon or 'relevant matters excluded from consideration' or some statute has been misunderstood or misconstrued.'
4. In this particular case, the Tribunal, in a part of its appellate order, stated:
'On the contrary, the appellant was trying to show some entry in the Head Office books with regard to the transfer of these businesses. But mere entries in the books of account cannot alone be considered to be sufficient for the purpose of establishing transfer of a business from one ownership to another. There seems to be no agreement in writing forrecording the arrangement to take out these two businesses from the family fold, and turn them into two separate partnerships. Such an arrangement js said to be verbal and the first record of this is by means of the entries in the books of account.'
5. It may be noted that the learned Tribunal did not declare that the entries in the Head Office books recording the severance of the two businesses from joint family assets and their division as between the members of the family were not genuine. They seemed to harbour the erroneous view that the verbal agreement of partial partition of a part of joint family assets consisting in movables followed by corresponding entries in their books of account does not amount to 'partition in law'. This aspect of the case has been dealt with in our order, dated, 22nd March, 1950. In the circumstances, we found that the question of law that arose was:
'Whether there was sufficient evidence in thecase to hold that the timber and the yarnbusinesses were not severed from the jointfamily assets.'
The Tribunal, it is apparent, take exception to the words 'sufficient evidence'. In their statement of case, they would frame the question after deleting the word 'sufficient'. In doing so, they are evidently of opinion that by questioning sufficiency of the evidence relied upon by them for the recorded finding, we would be acting like a Court of Appeal or Writ of Error. They apprehend that we are trespassing into the field of examining the credibility of the evidence accepted by them. We do not at all profess to have such a power nor does our order bear such an interpretation.
6. A moment's thought will reveal that in certain circumstances issue of credibility cannot be insulated from the operation of sufficient evidence test. If the record is to be searched simply for evidence which logically supports a finding, the presence of contradictory evidence becomes immaterial; but if sufficiency or substantiality of evidence is to be determined in the light of the whole record, it becomes difficult to maintain that contradiction is immaterial. Surely, cases may be imagined where the countervailing testimony, though not carrying 'irrefutable truth', may nevertheless affect the affirmative evidence in relation to its persuasive substance. Similarly, cases can be imagined in which the testimony or proof, that supports a finding, could not be deprived of substance by directly contradictory evidence, but certainly by other testimony, not itself directly contradicted, that logically impairs the same.
The role of a judicial review Court is not that of a logical machine or automaton. If the Judge is to judge as a man, then all the elements of the record that would move his conscience become relevant. In this sense, if not in any other, 'sufficient evidence' becomes a question of law, while merely 'evidence' is a question of fact. One particular phase of evidence may lead to a particular inference either of fact on of law, but when viewed in the light of, or considered along with, evidence of a contradictory import, it may lead to a different inference. Not to consider them together would amount to exclusion of relevant evidence which is indisputably a question of law. I have read the decision reported in -- 'Jethabhai Hirji & Co. v. Commr. of Income Tax, Bombay City' : 17ITR533(Bom) .
The question referred to in the context of the facts of that case does not import any contrary.opinion nor does the decision of Rankin, J. Even if it did so, the Tribunal should not have overruled us on their authority. By using the word 'evidence', their Lordships have meant legally sufficient evidence. We would, therefore, insist upon the question submitted to us to be in a form so as to enable us to consider whether the evidence available on the whole record is substantial and sufficient enough to uphold the legal finding recorded by the Tribunal.
7. Lastly, the learned counsel, Mr. Monohar Lall, who appeared before us for the appellant, invited our attention to scant courtesy shown to this Court by the learned members of the Tribunal in omitting the word 'Honourable' before the words ''Orissa High Court'. He has, at the same time, invited our attention to a number of statements of cases to show that it has been the convention of the Tribunal, as it should be, to address or refer to High Courts as 'Honourable Courts'. The omission in the present statement may be deliberate or accidental. We, however, refrain from speculating on the matter, but we hope that the attention of the Tribunal if invited to this unfortunate omission will serve the purpose.
8. We, therefore, refer the case back to the Tribunal to make additions to or alterations in their statement of case as we hereby direct in that behalf.
9. I agree.
10. It is indeed surprising that a Tribunal in which there was a judicial member, who, I am told (sic), his appointment as a member of the Tribunal, should have shown such discourtesy while referring to the High Court.