1. This is an application by Gokulchand on behalf of Messrs Tejpal Gokulchand under Section 66 (2) of the Income-tax Act.
2. The applicant is a cloth dealer in Udaipur. His income was assessed by the Income-tax Officer for the assessment year 1952-53, that officer did not accept the trading result based on the account books of the applicant, and added a sum of Rs. 10,000/- to the profits as shown in the account books on the ground that the profit disclosed was low, and there was no stock register.
The applicant appealed to the Appellate Assistant Commissioner who upheld the order of the Income-tax Officer with the modification that he reduced the additional amount from Rs. 10,000/-to Rs. 7,000/-. The applicant went up in further appeal to the Appellate Tribunal which upheld the decision of the Assistant Appellate Commissioner.
Thereafter, the applicant applied to the Appellate Tribunal for stating a case to this Court. That application was, however, dismissed. Consequently the applicant has come to this Court under Section 66 (2) of the Income-tax Act, and prays that the Appellate Tribunal be ordered to state a case with respect to the following three questions of law--
(1) Whether there was material before the tribunal to maintain an addition of Rs. 7000/- to the profit shown by the trading and Profit and Loss account?
(2) Whether under the facts and the circumstances of the case the application of the proviso to Section 13 of the Indian Income-tax Act, 1922 was legal?
(3) Whether in view of fresh evidence adduced in the accounting period the tribunal was instituted in following the decision of the Assistant Appellate Commissioner in the previous assessment regarding the annual letting value of the self-occupied houses of the assessee and not giving a fresh decision upon tbe merits of the case?
3. No one has appeared on behalf of the Commissioner of Income-tax to oppose the application.
4. We may first disposed of the third question. We are of opinion that this is not a question of law at all. What happened in this connection was that in the previous assessment year the residential houses of the applicant were valued to bring him Rs. 1800/- per year. In the assessment year in dispute, the applicant, led, some evidence before the Income-tax Officer, but that officer fixed the some figure as estimated income from residential houses as had been done in the previous year. In the judgments of the three courts, there is undoubtedly no mention of this additional evidence led by the applicant this time.
But we have no doubt that the authorities must have considered the fresh evidence also before coming to the conclusion that the estimated income in the year in dispute was the same as in the previous year. There is thus only an error in the form, in which the judgments are written, for it was open to the authorities concerned to come to the same conclusion as in the previous year in spite of the fresh evidence.
So far as the third question raised by the applicant is concerned, we are of opinion that it is, not a question of law for the simple question was about the amount to be estimated as income from residential houses. So far as the third question, therefore, is concerned, the application for stating a case must fail.
5. We now come to the second question, namely whether the Income-tax Officer was justified in applying the proviso to Section 13 of the Indian Income-tax Act. Section 13 provides, that income, profits and gains shall be computed in accordance with the method of accounting regularly employed by the assessee. But there is a proviso which lays down that if no method of accounting has been regularly employed, or if the method employed is such that, in the opinion of the Income-tax Officer the income, profits and gains cannot properly be deduced therefrom, then the computation shall be made upon such basis and in such manner as the income-tax Officer may determine. This section gives powers to reject the income, profits and gains to be found in the account books under certain circumstances.
The applicant contends that in his case the Income-tax Officer was not justified in acting under the proviso to Section 13. This, in our opinion, is a question of law, and it is but just that the Tribunal should be ordered to state a case in this connection. The Tribunal's judgment in appeal does not show that it went into this question from this point of view at all.
6. Then we come to the first question. This question will arise only if we answer the second question in favour of the income-tax Officer. Where the Income-tax Officer acts under the proviso to Section 33, he has to make the computation upon such basis and in such manner as he may determine. It is well settled that where the Income-tax Officer acts under the proviso to Section 13, he is bound to disclose in his order the basis and the manner of computation of the income, gains or profits, and to disclose the data on which he arrives at the result (See -- 'Nathuram Munnalul v. Commr. of Income-tax, C. P. and Berar', 1954 25 ITR 218: (AIR 1954 Nag 227).
The further question that arises in such cases is whether the Income-tax Officer had material at all on which to base his computation of the Income, gains or the profits. If be had such material, his computation would then he generally speaking a question of fact. But if he had no material at all on the basis or which he could make the computation, he would have no authority to make an arbitrary computation without any basis for it. The contention of the applicant is that in this case an addition has been made to the profits, shown in the account books withof any basis, put in this way, the first question would also raise a question of law, and the applicant is entitled to have a case stated by the Tribunal on the first question also.
7. We, therefore, allow the application in part, and order the Appellate Tribunal to state a case with respect to the following two questions of law--
(1) Whether under the facts and circum-stances of this case, the Income-tax Officer was justified in applying the proviso to Section 13 of the Indian Income-tax Act, 1922?
(2) If the answer to the first question is in the affirmative, was there any basis at all before the Income-tax Officer for making an action to the income profits and gains as disclosed in the account books, and for the Tribunal to maintain the addition of Rs. 7,000.''-?
As the opposite party did not appear, we pass noorder as to costs.