Sof the Income-tax Officer, Non-residents Refund Circle, Bombay, for the assessment years 1946-47 to 1956-57 are collectively made hereto Annexure 'A' forming part of the case.
3.The Late Rana expired in May, 1960, at that time he was settled in Bangalore. Subsequently the assessed's file was transferred to the Income-tax Officer, Central Circle-IV, Delhi. This Income-tax Officer, on going through the files, found that there was no trust deed on the file of the Income-tax Officer, Bombay. He, thereforee, initiated proceedings under section 147 on the legal representative of the late Rana to re-open the assessments for all these years..................'
(7) We may now consider the provision relevant to the present proceedings, i.e., Section 147(a) of the Income-tax Act, 1961. That portion of Section 147(a) with which we are concerned is reproduced below :
'147(A).If, the Income-tax Officer has reason to believe that, by reason of the omission or failure on the part of an assessed........to disclose fully and truly all material facts necessary for his assessment for that year, income chargeable to tax has escaped assessment for that year.... he may, subject to the provisions of section 148 to 153.............. reassess such income............'
(8) Income escaping assessment being a rampant feature of our society, this provision of law has been invoked very frequently and equally frequently have proceedings under it been challenged before appropriate authorities and courts. The result is that numerous decisions of the Supreme Court of India and of the various High Courts on each phrase of the above provision have been handed down. More than a dozen of these have been cited before us. Having considered each one of them, we find that the propositions set out by the Supreme Court in one of the earliest judgments on the subject pronounced on 1-11-1960, i.e., Calcutta Discount Company Ltd. v. I.T.O., reported as : 41ITR191(SC) remain good and clear after these nearly three decades and the subsequent judgments have only elaborated further certain aspects of these propositions.
(9) It appears unnecessary to quote from the numerous judgments starting from the Calcutta Discount Company case and coming up to judgments delivered this year. We set out below the propositions on the above quoted portions of Section 147(a) and concerning the facts of this case that in our view emerge from these judgments.
1(a) The Income-tax Officer gets jurisdiction to issue a notice under Section 148 in respect of cases falling under Section 147(a) only if he has reason to believe that
(A)income chargeable to tax has escaped assessment, and
(B)such escapement has been occasioned by omission or failure on the part of the assessed to disclose fully and truly all material facts necessary for his assessment for the year.
1(2)The Income-tax Officer must have some reasonable grounds to support the aforesaid belief. What is required is not belief in the existence of reasons inducing the belief but belief induced by the existence of reasons.
1(3)The belief of the Income-tax Officer must be based on information/material and not on mere suspicion or a vague feeling.
1(4)Rational connection between the reasons which exist and the formation of belief postulates that there must be a. direct nexus or live link between the material coming to the knowledge of the Income-tax Officer and the formation of belief. Material cannot be any or every material however vague and indefinite or distant remote and far-fetched.
1(5)The belief must extend not only to the escapement of income from assessment but also to the escapement being occasioned by omission or failure on the part of the assessed to disclose fully and truly all relevant material.
1(6)The non-disclosure must relate to primary facts, i.e., facts necessary for a proper assessment. There is no obligation on the assesses to disclose facts other than primary facts.
1(7)Once the Income-tax Officer has some information/material to cause the relevant belief, the sufficiency of material for causing such relief is not justiciable.
1(8)The belief relevant to the provision is a belief held in good faith and not a mere pretence.
1(9)The belief is not a purely subjective satisfaction of the Income-tax Officer and such belief being the source of his jurisdiction the forum of decision as to the existence of reasons and the belief is not the mind of the Income-tax Officer but an appropriate authority under the Income-tax Act and/or the High Courts in exercise of their jurisdiction under Article 226 of the Constitution of India.
1(10)It is a statutory requirement that before issuing a notice under Section 148 the Income-tax Officer must record reasons. There is however no requirement to communicate the reasons in or with the notice.
1(11)No remedy is provided under the Income-tax Act to challenge the jurisdiction of the Income-tax Officer in issuing a notice under Section 148 and an assessed is entitled to move an appropriate High Court by a petition under Article 226 of the Constitution of India for the quashing of such a notice on the ground that no reasons exist to enable the Income-tax Officer to issue such a notice or that the reasons are not relevant for causing the appropriate belief either in respect of escapement of income or in respect of the same having been occasioned on account of the omission or failure on the part of the assessed to fully and truly disclose all necessary primary facts.
1(12)It is only appropriate that the assessed must file a return in response to the notice and ask for the reasons, if not known, before invoking the extra-ordinary prerogative powers of a High Court under Article 226 of the Constitution of India.
2(1)The law does not require the assessed to State the conclusion that could reasonably be drawn from the primary facts. He is not required to inform the Income-tax Officer as to what legal inference should be drawn from the facts disclosed by him to advise the Income-tax Officer on questions of law. 'Therefore a notice under Section 148 in respect of Section 147(a) cannot be based on such omission or failure on the part of the assessed.
2(2)The word 'Truly' in Section 147(a) means as much as it says and escapement of income from any omission or failure to disclose the true primary facts would satisfy the requirement of jurisdiction pertaining to this part of Section 147(a). If the primary facts placed before the Income-tax Officer are false, put up, made up or manipulated, the provision of Section 147(a) will be attracted, subject to the other requirements.
2(3)Escapement of income from assessment either due to a particular view of law or facts taken by the Income-tax Officer or due to a mistake otherwise on the part of the Income-tax Officer is not an escapement relevant to Section 147(a) as such escapement is not on account of the omission or failure of the assessed to discharge his obligation under Section 147(a). thereforee a notice and a consequent reassessment based on a change of opinion on the part of the Income-tax Officer is not sustainable in law,
2(4)Where income has escaped assessment as a result of the lack of vigilance of the Income-tax Officer or due to inadvertence or negligence or perfunctory performance of his duties without due care and caution, without prejudice to other remedies in law which may be available, like resort to Section 154, a reassessment cannot be taken recourse to under Section 147(a).
2(5)The burden of showing that income has escaped assessment lies on the Department but the burden of proving that there has been no non-disclosure within the meaning of Section 147(a) is on the assessed.
(10) But of all the above propositions, none is more profound and useful to remember than the one made in the Calcutta Discount Company case, that what facts were material and necessary for assessment which the assessed was obliged to disclose fully and truly differ from case to case. This proposition cannot be better illustrated than by recalling that in the very case (Calcutta Discount Co.) which became the occasion of a lucid enmiciation of these propositions, 2 judges, Shah and Hidayatullah JJ. differed from 3 judges, S. K. Das, Das Gupta and Rajagopala Ayyangar JJ., on whether in the facts and circumstances of that case, the assessed had or had not disclosed fully and truly the necessary material facts within the meaning of Section 34(1) (a) of the 1922 Act analogous to Section 147(a) of the 1961 Act.
(11) This thereforee brings us to examine the reasons relied upon by the Income-tax Officer to issue notices in respect of Section 147(a) to the asscssee before us.
(12) In identical orders of reassessment the Income-tax Officer has noted the fresh material facts which had come to his knowledge 'which prove the hollowness of the claim regarding beneficiaries . . .' and has set them out. As these are the facts from which he had reason to believe, relevant to Section 147(a), the same are reproduced below.
'(1)It is seen from an extract of the Will of the assessed's father late Shri Chandra S. S. J. B. Rana, ex-Prime Minister of Nepal that he divided his entire assets excluding a sum of Rs. 54 lacs among his eight sons (including the assessed) and his wife, late Beda Maharani Bala Kumari Devi. It can, thereforee, be presumed that his sons and his widow received their share of property as their personal property without any encumberances and without any obligation to any beneficiaries.
(2)The assessed also transferred a portion of assets to his younger son, Maj. Genl. Brahma S. S, J. B. Rana in 1951 by giving him shares and cash over which late General Baber S. S. J. B. Rana had full control, Genl. Brahma separated from his father by renouncing all his rights of the ancestoral property on receipt of shares etc., from his father.
(3)On 3rd February, 1952 Maharani Beda Kumari Devi, assessed's step mother died at Banaras leaving a, very large Estate in the form of shares and securities, gold etc., to the extent of Rs. 1,70,00,000. There was a dispute between her legal heirs and they filed a Suit in Bombay High Court in 1957 and it was ultimately settled by consent decree by High Court laying down the mode of distribution of the assets. It is evident from the plaint and the decree that she received the Estate under the Will of her husband and treated it as her absolute property at all times and none of her children or any one else questioned her right to dispose of or to deal with the same in any manner she liked. According to the Will of late Prime Minister, Maharaja Chandra S. S. J. B. Rana she came in possession of this property in the same manner as the assessed did along with his other brothers.
(4)Genl. Singha, one of the brother of the assessed appeared before the Income-tax Officer, N.R.R.C., Bombay on 1-6-62 and admitted that all the shares and securities standing in his name were acquired by him from his father during latter's life time and after his death, in accordance with a Will. He also had made a similar claim earlier that part of his inherited Estate belonged to certain beneficiaries. In 1952, Genl. Singha sold some of his Estate and did not distribute anything to the so-called beneficiaries. At the time of filing the Wealth-tax return for the assessment year 1957-58 he gave up his earlier claim of having beneficiaries and declared the entire assets for assessments in his own hands.
(5)Another brother of the assessed, Field Marshal Kaisen gave up his claim regarding Trust and beneficiaries in his Wealth-tax returns, thus proving that the earlier claims regarding beneficiaries was false.
(6)Yet another brother of the assessed, Genl. Vishnu had never claimed that any part of his assets belonged to beneficiaries although he also received the assets in the same manner and from the same source. The reasons for this appears to be that Genl. Vishnu was in U.K. at the time when the story of Trust and beneficiaries was made out before the department by Shri K. U. Advani a share broker of Bombay who appeared as a family friend of the Ranas.'
(13) Appeals filed against the orders of reassessment were allowed by a common order dated 21-12-1967. In this order the aforesaid 6 'fresh material facts' were commented upon and it is useful to quote the said comments of the Appellate Assistant Commissioner from the Statement of the Case.
'NOWlet us see on the fact on this case, how far the assessed had disclosed all the primary facts before the I.T.O. From the order of the I.T.O. for the assessment year 1947-48, it is very clear that the original Trust Deed was produced before him. It is also to be seen that the matter was referred to the higher authorities and ultimately the I.T.O., accepted the trust as genuine. Now it has to be seen what fresh material came to the knowledge of the I.T.O. after the completion of the said assessment and how far the appellant did not fully disclose all the primary facts at the time of the original assessment. I have reproduced above the socalled fresh material that come to the knowledge of the I.T.O. as stated by him in the assessment order. In my opinion, none of the items mentioned above by him is relevant to the point at issue. The fact that the father of the late assessed divided his entire assets excluding a sum of Rs. 54 lacs among the sons is totally irrelevant. In fact the I.T.O. says that it can be presumed that the sons and his widow received their share of property without any obligation to any beneficiaries. I do not see how this helps the I.T.O. in any way. Once, the assessed inherited the wealth from his father it was definitely open to him to create or set up a trust in respect of these properties or any other properties which he had with him. Similarly the second reason given by the I.T.O. viz., that the assessed transferred a portion of his assets to his younger brother in 1951 and that the younger brother separated from his father by renouncing all his rights in respect of ancesteral property has equally no bearing on the point at issue. Then the I.T.O. had made some reference to some litigation in the Bombay High Court. Here again I fail to see how this constitutes fresh material for re-opening these assessments. 'The 4th, 5th and 6th items mentioned by I.T.O. are really very strange. In two instances, the I.T.O. concludes that because the brothers of the assessed went back on their earlier statements with regard to certain trust created by them, the position must be the same in this case also. I do not see how it follows that the trust created by the assessed is bogus. Such a conclusion, in my opinion, is based purely on conjecture and suspicion and not on any solid material. Similarly, the fact that one more brother never set up a trust is equally irrelevant. It is no where laid down that if one brother creates a trust the other brothers must follow suit.
12.At this stage, I have to note of one more argument of Sh. Ananthachari. With regard to the statement of the I.T.O., that the onus of proving existence of a genuine Trust Deed is on the assessed, he argued that this onus had been discharged at the time of the assessment for 1947-48. He said that the onus was now on the I.T.O. to prove that the trust was not genuine. With regard to the non-production of the Trust Deed, during the reassessment proceedings, Sh. Ananthachari stated that the late assessed ran away from Nepal as a political refugee leaving behind practically all his properties. The assessment proceedings were initiated against the legal heirs. They were not in a position to know what the deceased has done with Deed. thereforee, they could not be held responsible at this stage for the nonproduction of the Trust Deed particularly when the original had been produced before the I.T.O. at the time of the assessment for 1947-48. In fact, Shri Anantbachari, drew my attention to the relevant passage in the order of the I.T.O. for 1947-48 in which he has stated that relevant extracts of the deed were also placed on the permanent record. He further submitted that it was wrong on the part of the I.T.O. to throw the onus on the assessed. In my opinion, this argument is well founded. With regard to the trust properties standing in the name of the deceased Shri Ananthachari argued that there was nothing wrong on the properties standing in the name of the trustee. In fact he stated that this was the most natural thing.
13.With regard to the change in the number of beneficiaries he pointed out that it was for the beneficiaries to file the return and get their refunds. The assessed cannot be penalised if some of the beneficiaries did not file the returns. I find that all the twenty three beneficiaries did not file the returns, for the assessment year 1953-54. For the other years, even though the number of beneficiaries who filed the returns was less, the names are all common. Hence there can be possibly no force in the I.T. O. 's argument regarding the change in the number of beneficiaries.
14.I am clearly of the opinion that the argument of Shri Ananthachari that there was want of jurisdiction is well founded. The Income-tax Officer has not brought out any material to show that there was any omission or failure on the part of the assessed to disclose fully and truly all the primary facts at the time of original assessment.'
(14) The Department appealed against the order of the Appellate Assistant Commissioner. By separate orders of the 2 members of the Income-tax Appellate Tribunal, the appeals were allowed. We have carefully gone through the orders but curiously there is nothing in these orders which militates against the appreciation by the Appellate Assistant Commissioner on the 6 grounds'/reasons/material facts which led the Income-tax Officer to issue notices under Section 148. In fact the Income-tax Appellate Tribunal has failed to consider if any of these 6 so-called material facts are either material or even relevant for the assessment of the assessed or that whether the assessed was obliged in law, to disclose them for the purpose of his assessment. As noted by the Appellate Assistant Commissioner, there facts are so patently irrelevant that we are constrained to hold that they could net cause 'reason to believe' relevant to Section 147(a). We thereforee hold that the notices issued under Section 148 are without jurisdiction and the consequent reassessments are without the authority of law. We thereforee allow the writ petitions with costs and quash the notices issued under Section 148 and the reassessment orders that followed.
(15) In view of our above findings and order, there appears to be no need to answer the Reference separately. Even so, we have carefully pursued the two orders of the Income-tax Appellate Tribunal to examine its findings of fact which we are required to accept for the purposes of answering the reference.
(16) Shri K. D. Dholakia, Accountant Member of the Income-tax Appellate Tribunal, notices the contentions of the parties in the first 5 paragraphs. In the 6th and the last paragraph he quotes from the Calcutta Discount Co. Ltd. case and on the last 2 pages (161-62 of the Paper Book of the Reference) makes the following two observations, which alone have been described and relied upon as findings of fact.
'1.In the instant case it is no doubt true that in the original assessment order it has been mentioned that the trust deed had been produced regarding the income being that of the beneficiaries . . . . . .'
'2.In the instant case from the facts narrated above, it can be seen that the Income-tax Officer had reason to believe that there was no such trust deed as mentioned in the original assessment order......... The Appellate Assistant Commissioner appears to have based his decision mostly on the fact that the existence of trust deed has been mentioned by the Income-tax Officer in the original assessment order. However the records do not bear out this fact.'
(17) Now the first observation is clearly in favor of the assessed as it points out to the order of the Income-tax Officer wherein he had noted that the Trust Deed was produced before him. The second which is directly contrary to the first is primarily based on the failure of the assessed to produce the Trust Deed when called upon to do after the issue of the impugned notices and during the proceedings thereon and secondly from the fact that the permanent records show that even though at the time of the original assessment the Income-tax Officer, in his order, noted that :
'MR.Advani has produced original of the Trust Deed executed by the assessed in support of the claims. Relevant abstracts of the Deed are filed in the permanent notes record (I.T. 111 ). The shares of the various beneficiaries are shown in the Schedules.'
Such documents are not on but the record
(18) In the first instance, the non-production of the Trust Deed by the assessed during the reassessment proceedings cannot be pressed in aid as a factor contributing to 'reason to believe' and in justifying the issue of notices under Section 148 because this non-production was occasioned after the issue of notices and was not before the Income-tax Officer then and the Income-tax Appellate Tribunal erred in affirming the validity of 'reason to believe' on this ground. Secondly, the fact that during the assessment of 1946-47 in 1947 the Income-tax Officer notes in its order that the Trust Deed was produced and assessment for the next 10 years followed on this basis whereas 20 years later, in 1967, the same was not found on record, it cannot be inferred that there never was a Trust Deed and such an inference is not the kind of a finding of fact which has to be accepted as gospel in answering the reference.
(19) From a perusal of the order of Shri A. C. Maitra, the 2nd member of the Income-tax Appellate Tribunal we find that he has added little to the findings of fact quoted from the order of his colleague Shri K. D. Dholakia. He observes that 'we can hold that no generalisation could be made that since the Income-tax Officer recorded a finding that original Trust Deed was produced, all primary facts were disclosed about the existence of the trust... . .' He then goes on to give his finding as follows:
'ITwas more probable that the Income-tax Officer before whom the so called trust deed was produced in Gorkha language mistook as original trust deed in place of the will, extract of which will be found from the records of the Income-tax Department . . . . .'
(20) In our opinion, the so called findings of fact are In fact probable inferences drawn from the one fact that the permanent record of 1947 when looked at 20 years later, does not have a trust deed and thereforee the same was not produced notwithstanding the clear and conclusive nothings in the order of the Income-tax Officer to the contrary. In our view the assessed cannot be shut out from challenging such an inference on the ground that it has been set out as a finding of fact. In : 78ITR45(SC) , Commissioner of Income-tax, West Bengal Ii v. Rajasthan Mines Ltd., the Supreme Court had occasion to consider such an argument and observed, on page 49, as follows :
'ITwas urged on behalf of the revenue that the finding of the Tribunal that the purchase and sale of lands were made in the course of business being a finding of fact, it was not open to the High Court to interfere with that finding. But as observed by this court in G. Venkataswami Naidu and Co. v. Commissioner of Income-tax, 0065/1958 : 35ITR594(SC) , if the finding of fact is based on an inference from the primary evidentiary facts proved in the case, its correctness or validity is open to challenge in reference proceedings within narrow limits. It is open' to the parties to challenge a conclusion of fact drawn by the Tribunal on the ground that it is not supported by any legal evidence or that the impugned conclusion drawn from the relevant facts is not rationally possible. If such a plea is established, the court has to consider whether the conclusion in question is not perverse and should not, thereforee, be set aside. On the facts of this case the High Court was justified in examining the correctness of the Inference drawn by the Tribunal on the basis of the primary facts found by that Tribunal.'
(21) Even though, an assessed should not be allowed to take advantage of his own failure to carry out his obligations under the law merely on the ground of a long passage of time so Iong as he is to be fastened with the consequences of such failure in accordance with law yet it cannot be emphasised enough that in cases where documcnt/ informations are asked to be produced after 20 years, as in this case. failure to produce the same occasioned by various circumstances and developments in long passage of time cannot be summarily and lightly brushed aside. In S. Hastimal v. Commissioner of Income-tax, Madras : 49ITR273(Mad) , a Division Bench of the Madras High Court had occasion to observe on page 227 :
'ITmust be noted that the proceedings under section 34 were started in the year 1957 calling upon the assessed to explain a capital credit in his favor in the books of account for Hastimal Jayantilal and Co. made in the year 1947. The difficulty on the part of any assessed to explain a transaction which is a decade old had to be borne in mind by the department and should under no circumstances be underestimated or taken advantage of by them......'
and again on page 279,
'AFTERthe lapse of ten years the assessed should not be placed upon the rack and called upon to explain not merely the origin and source of his capital contribution but the origin of origin and the source of source as well.'
(22) In view of the order of the Income-tax Officer passed in 1947 and set out in the Statement of Case clearly noting therein the production by the assessed of the deed and other primary facts necessary for assessment of taxable income and in view of no sustainable finding of fact belying such a noting or even satisfactorily explaining it away and on the facts and in the circumstances of the case, we hold that the Tribunal was not justified in law in holding that the reassessments made by the Income-tax Officer (in 1967) under Section 147 of the Act of 1961 were validly made and we further hold that the Appellate Assistant Commissioner was justified in cancelling them for want of jurisdiction and answer the reference accordingly.
(23) We have already ordered above that the writ petitions are allowed with costs.