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Commissioner of Income-tax Vs. P.S. Chelladurai - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtChennai High Court
Decided On
Case NumberTax Case Nos. 1253 and 1254 of 1977
Reported in[1984]145ITR139(Mad)
ActsIncome Tax Act, 1961 - Sections 10(3)
AppellantCommissioner of Income-tax
RespondentP.S. Chelladurai
Appellant AdvocateJ. Jayaraman and ;Nalini Chidambaram, Advs.
Respondent AdvocateK.S. Balakrishnan, Adv.
Cases ReferredGraham v. Green
direct taxation - social worker - section 10 (3) of income tax act, 1961 - income tax issue relating to self-employed social worker - assessee as social worker was nevertheless engaged in occupation - facts of case revealed that there was regular flow of money into assessee's hands in exercise of his occupation - tribunal's review of details of assessment orders very sketchy - tribunal to take up inquiry in greater details for determining major issue of case as to earning of taxable income in occupation as social worker. - - his is an interesting story. from then on, according to the assessee him-self, he took to social work among poor christian brethren in the city of madras and its suburbs. he took the lodging of his family in the rented building of the bible class, and he and the.....balasubrahmanyan, j.1. this income-tax case relates to a self-employed social worker. his is an interesting story. he bears the name of chelladurai. he was born into the christian faith. during his early period of earning years, he was a clerical employee in the p & t dept. in madras. one day in 1963, this individual came in contact with a visiting american missionary. from then on, according to the assessee him-self, he took to social work among poor christian brethren in the city of madras and its suburbs. in the beginning, he utilised the spare time which the post office allowed him in order to make his rounds in the slums, in the huts, in the churches and other places where his work led him. in course of time, this kind of endeavour became so demanding and so rewarding that he applied.....

Balasubrahmanyan, J.

1. This income-tax case relates to a self-employed social worker. His is an interesting story. He bears the name of Chelladurai. He was born into the Christian faith. During his early period of earning years, he was a clerical employee in the P & T Dept. in Madras. One day in 1963, this individual came in contact with a visiting American Missionary. From then on, according to the assessee him-self, he took to social work among poor Christian brethren in the City of Madras and its suburbs. In the beginning, he utilised the spare time which the post office allowed him in order to make his rounds in the slums, in the huts, in the churches and other places where his work led him. In course of time, this kind of endeavour became so demanding and so rewarding that he applied for a long leave of absence from service. He became, in short, a full-time social worker even before he quit his postal job finally, which was some time in 1973. His particular line of social work lay in running orphanages, Sundays schools and Bible classes. What sustained this individual in the range of his work from the very beginning till this day were the remittances of money which came in steadily from foreign missionaries, chiefly from two organizations, one called 'Inter Mission' (apparently a shortened form of International Mission) with its headquarters in an over, Germany, and an American Foundation called 'Native Missionary'. Enormous sums of money, enormous from the point of view of this one-time postal employee, passed through his hands. All of them came from abroad either in dollars or in other currencies. The assessee spent the money in maintaining an orphanage, a common mess for the pupils in the Sunday school. He also invested in the purchase of a car and what not. All for the cause. By the time we speak of, he had all but resigned his postal job. He was already on loss of pay. Nevertheless, he had risen in status, maintaining a fairly sizable family of fine children and wife. The wife, he observed in the Sunday school, as a paid teacher. He took the lodging of his family in the rented building of the Bible class, and he and the members of his family partook of the common mess along with the poor pupils. He purchased lands in his name, l went in for one car after another under his registration. All the while he had not outside source of income. Nor did he note himself any salary as a social worker responsible for all these achievements.

2. As happens, sooner or later, the gaze of the I.T. Dept. fell upon this individual and his work. If the ITO got to know this man's deposit accounts with the First National City Bank of New York and other banks and the foreign remittances which got into those accounts. The details of his social work also did not escape the attention of the officer. Particularly interesting to that official was the ways of life of the assessee and his considerable family, not to speak of the standard of comfort they were maintaining for themselves during recent years.

3. The attention and interest evinced by the I.T. Dept. stirred the assessee into filing returns before the ITO for 1969-70 and 1970-71, but only to display in Part III of the returns a sum of money representing a part of the foreign remittances deposited in the banks in the relevant previous years. No account statements accompanied the returns. Just a figure in Part III in each year's return, as who should say, 'This is not my income; I return it only for fear of consequences for not returning it.' He engaged expert professional help and argued before the ITO that he had no income to be taxed and what he was doing was social work as the mission of his life. He admitted receipt of remittances from abroad, but insisted that he got no salary or remuneration for all his trouble. He described himself, in short, as an agent in India for usefully spending the money sent by foreign Christian missionaries.

4. The ITO, however, looked at the whole thing from a different angle. In one of his assessment orders, he observed thus :

'Even though the assessee claims that the entire deposits in the bank were utilized towards the maintenance of the Bible Society, orphanage, etc., I am not prepared to accept his version. The assessee was employed as a Selection Grade Clerk in the Office of the Director, Audit and Accounts, P & T, Madras-8, and it was stated that he was on leave on loss of pay since 25-8-69. The assessee has 9 children and is living with his wife and children in the premises No. 5, Subbiah Naidu Street, Vepery, taken on rent for Bible school. He, with the members of his family, is messing in the common mess meant for the Bible school and the total rent for the Bible school is one thousand rupees per mensem for an area of 2,000 square feet and the portion occupied buy the assessee may be 400 square feet. From the style of living of the assessee, I consider that the benefits enjoyed out of the funds received from foreign missionaries could be estimated at Rs. 10,000 per year and I treat this amount of Rs. 10,000 as the income of the assessee.'

5. This estimate of Rs. 10,000 provided the standard basis of assessment for the two years, 1969-70 and 1970-71. There were, however, individual variations in the two assessment. In 1969-70, for example, the ITO added two more amounts. One was a sum of Rs. 5,000 admitted to be the cost of construction of an orphange building in Villivakkam. The other addition was Rs. 7,600 representing the difference n price paid by the assessee in the transaction of selling an old car and replacing it with a new one. These two amounts were treated by the ITO as part of the assessee's income for the year concerned, in the view that the two investments represented the assessee's own private investments from out of appropriations which he had made from the from foreign remittances. In the subsequent year 1970-71, the ITO added Rs. 7,000 to the basic amount of Rs. 10,000 estimated on the fact of the assessee-family's expenditure account. This addition of Rs. 7,000 was on account of the money lad out by the assessee for the construction of a building at Tambaram in the name of his wife. According to the ITO, there was no proof for the source of any funds at the disposal of the assessee's wife for constructing a building of that kind. The officer, accordingly, held that the wherewithal for the construction of the building should have come only from resources available with the assessee. The sum of Rs. 7,000 was, therefore, added as part of the income of the assessee for that year.

6. The AAC, however, set aside the assessments in appeal. We do not wish to pay attention to this order, because it is found to be almost a wholesale adoption of what the assessee himself gave in writing before the AAC as a statement of his case, or his written argument.

7. To resume the narrative, the matter was taken in appeal before the Tribunal by the I.T. Dept, A single member, sitting as the Tribunal, however, confirmed the AAC's order, and dismissed the Department's appeals. The Department thereupon demanded a reference. But a two member Bench of the Tribunal dismissed the application, as not involving any questions of law. This court, however, thought otherwise and directed the Tribunal to state a case.

8. In thus reference, which has since come from the Tribunal, the question is whether the assessments made on the assessee are good in law or whether they are bad in law. The questions which have been presented before us in the statement of the case only raise mattes of detail, if attention is paid merely to their format. The Tribunal's order under appeal, however, dealt with the issues on broader legal aspects. To those aspects then, we must now address ourselves.

9. We must first clear the ground by examining what the nature of the assessee's activities is in order t find out if they produce taxable income for the assessee. Everywhere in the world income-tax law fights shy of rendering a complete definition either of income or of its sources. Advisedly, because the categories of income, as well as the categories of sources of income, are never closed. We have the three learned professions, of the law, medicine, and priesthood, which are classic examples of self-employment as a source of income. To this exclusive list was recently added the profession of accoutancy by judicial say-so. Apart from the learned professions, the are countless other professions, one of which carries the sobriquet of being holder than the rest, not to speak of crafts, vocation, avocations, occupation, calling and various other means of self-employment, whether organized or unorganized, whether statutory controlled or otherwise. Sport and pastime account for innumerable self-employment opportunities, from the gladiators of ancient Rome down to those who participate in the big business of Tennis. All these sportsmen and sports-women are taxable on their earnings if they take to their games as professionals. Reports of cases show that even testimonial matches, which are arranged every how and then to encourage the veterans to quit the game for good, cannot escape the Revenue's attention. As for the vocations, occupation, and calling in our country, they are as numbers and as be wildering as the satisfications of castes and sub-case under which some of them even now function. What is more, patterns of human activity which we could never have dreamt of, associating with income-earning, are now part of the world of gainful occupation. Take for example a vedantin. He is the very antithesis of an income-earner. There are, however, a few of this tribe would tend to develop as fine a sense of double-entry book-keeping as they have of the philosophy of non-dualism. One Krishan Menon of Kerala's, a policeman turned vedantin, received from an occidental disciple of his a considerable sum of money. It was assessed to income-tax. The recipient protested that he was a pure or 'Parama' vedantin. the Supreme Court did not doubt it for a moment, but sustained the assessment all the same on the ground that his brand of vedanta was an income-earning occupation : P. Krishan Menon v. CIT : [1959]35ITR48(SC) . It is easier now, than some years back, for common people to bring themselves to accept and tolerate the spectacle of venerable men and women making : money out of things of the spirit, like meditation, and things of the body, like deep breathing. Money-making propositions need not be whole-time jobs even in occupation. We have the incredible case of a political figure who had held high positions in the State, but who also wrote fables and parables in his spare time. He was assessed to income-tax on what he got from the publishers for his writings. The court upheld the assessment on the ground that the money was earned in the exercise of an occupation or vocation, namely, that of a free-lance writer to journals. C. Rajagopalachariar v. CIT : [1963]50ITR196(Mad) .

10. It would seem that a calling, or a vocation, is only distinguishable from what people do for the sheer love of it. Not in the sense of job satisfaction for paid jobs. But as a hobby, for instance. Rowlatt J. had to deal with the case an Englishman who did not miss a meeting at the races, and who, as luck would have it, won every other time. His winnings from the turf were sought to be taxed by the Island Revenue. The learned judge, however, ruled out the assessment. Going to the races, he said, was a mere habit with that individual. Income-tax was not a tax on a habit, the learned judge added. Graham v. Green [1925] 9 TC 309.

11. Hobbies and additions apart, it would seem that any human pursuit which involves the seeking after emoluments or which involves the unrestricted inflow of money into private hands, whether or not devoutly wished for by the individual concerned, tends to make him not only an income-earner, but also an income-tax payer to boot. And if he was a family to maintain, and has not altogether renounced it, he may be truly regarded as it s breadwinner.

12. Into this class of breadwinners must be assigned self-employed and other-employed social workers. Before all the tax authorities it has always been the boast of the assessee in the present case that he is a social worker, first and last. We cannot quarrel with this description. But, at the same time, we cannot accept the implication that social work is some nondescript activity of a non-materialistic character. It is time we, in this country, begin to realize social work for what it is. In the beginning, this kind of work in the slums, in the Harijan quarters and the like, was taken to by comfortable moneyed classes either as a publicity stunt, or to assuage their conscience, or out of genuine feeling for the poor and the outcast. All this has now changed; in the same way as politics has changed. In the good old days, politics was the pastime of the leisureclass or the part-time foray of the professional class. Now, it is a veritable profession, a wholetime job. So too trade unionism. So too social work. Social workers come from all sections of the community, mostly from the very families who are themselves in very much need of it. What is more, a social worker has to be always at his job, all the 24 hours of the day, as it were. So much so that he has to seek after emoluments in that very line of activity in order that he may keep his home fires burning. In the present state of society, therefore, it is no derogation to say that social workers and trade unionists make a living out of their work, any more than it could be an offence to characterize a professional politician as making his living out of politics. All these estimable people have got to make a living out of their respective professions, and no one can grudge the emoluments either to social or to political workers or to trade unionists, if what they get out of their activities are to be traded, as they should be, as pure professional earnings. All we can expect from them is that their services are worth the money that society allows them to take. We may, perhaps, leave out of the present discussion the recluses, the sanyasis, and the pure dreamers and poets whom we sometimes find straying into the arena of politics and social work. But, even in their case, it does cost someone or some institution or some group of people, some money to maintain them and that, in economic content, can and must be equated to their real income. A social worker too, like the rest of us, has to live. He has a family to run.

13. If he does so, without receiving any remuneration from outside and without formally voting himself a salary from the funds at his disposal, how the man it at all able to make good cannot be dismissed as an enigma or a miracle. The explanation would be simple and even quite obvious : he is able to do so because there are funds available with him which go to pay for his necessities, his comforts, and his luxuries, not to speak of those which his dependents enjoy in the process. If there are accounts, and if the accounts record both the personal allowances to the social worker and the drawings therefrom, the computation of his income is an easily verifiable process. But, in cases where there are no accounts or where the social worker simply appropriates to himself, willy nilly, the material requisites for his well-being and that of his family, it does not mean he has no income at all to report, but only that it becomes a laborious process to estimate his income to the nearest rupee.

14. The Tribunal have clearly accepted the position that the assessee's social work is not something etherial or spiritual, but must be regarded as a mundane occupation. This is what they say in their order :

'The basic question for consideration is whether the foreign remittances formed the income of the assessee. The Revenue's only reason for considering it to be assessee's income is that the assessee has received the remittances during the course of his occupation of carrying on social work and the work as an evangelist in a systematic and orderly manner. According to it, the money received by the assessee in the course of carrying on an occupation formed his income. There is no dispute regarding the fact that though the assessee earlier carried on social work side by side with working as a Government employee, in course of time, he took leave of Government service to enable him to devote more time to this work which was to his greater liking and ultimately relinquished Government service to devote himself fully to his work. The assessee, no doubt, carries on social work such as running orphanages, Bible school, etc. Since this activity is being carried on by him continuously and in a systematic and orderly manner, it may be treated as his occupation.'

15. The Tribunal also said that where an individual is engaged in an occupation in the above sense, then, he can be taxed on the receipts from that occupation. But the Tribunal observed that such recipes, in order to be taxable, must be for the assessee and by the assessee, and it is not enough that they are receipts of the occupation.

16. The Tribunal's observation is sententious. All it means is that a man must be taxed only on income which is his. If so understood, this observation of the Tribunal may not be found fault with. Where the Tribunal went wrong, however, was in their endeavour to see whether the assessee in this particular case got any income out of this occupation of his. The Tribunal first said that the assessee did not receive any salary or wages from any of the foreign missionaries. This factual position can be readily accepted. The assessee was not a paid social worker either of the foreign missionaries or of any other organization. The assessee's way of approach to social work was to be engaged in it on his own. He was nobody's servant, but a master of his own time and procedure. It cannot, however, be suggested that where a man carries on social work as a self-employed in that line, he cannot be taxed at all on his earnings unless the earnings partake of the character of salary or wages. This would be an impossible proposition even to state, let alone accept. A lawyer or a doctor exercising his profession independently is taxable on his professional receipts, even though the receipts are not, and cannot be regarded, as salary. There can, therefore, be no reason or principle as to why a social worker cannot be dealt with similarly on the earnings from his occupation of social work. The fact that a social worker is so called does not mean that he is a wage-earner under anybody. He is so called for want of a more accurate description.

17. The Tribunal erred in thinking that in order that income may be received it must be money actually put into the hands of the taxpayer by someone demonstrably seen parting with so much cash. For a self-employed activity, such as a business or profession, income does not have to come in. It simply arises or accrues out of that activity. What happened in this case was that income arose to the assessee from the exercise by him of his vocation as a social worker. In the very nature of income of this kind, it can only arise or accrue. The fact that it is not visibly received cannot make it any the less income accruing. Income can accrue visibly as well as invisibly, openly as well as covertly. The assessee has been in possession of the foreign remittances without any control over their disposal, save those which were self-administered. Hence the application of part of such remittances for his own private needs and expenses can reasonably be regarded either as constructive receipt of money as income, or as income accruing to him in the course of the exercise by him of his vocation as a social worker. In either event, taxable income emerges, which cannot escape assessment.

18. A particular difficulty which the Tribunal felt in discovering the element of income in this case was that the foreign remittances, according to the Tribunal, were, to the last pie, intended for being utilized only for such things as the orphanage, the Bible class, and the Sunday school. We believe that this was, by and large, the object of the remittances. But there is nothing in the evidence on record to show the the foreign missionaries at any time grudged the assessee some reasonable emolument consistent with his needs, with the funds available, and with the nature and extent of his exertions. At any rate, the Tribunal has not pointed to any embargo against the assessee taking anything for his own upkeep and for the reasonable requirements of his family whilst being engaged all the time in administering the charitable remittances. It is a fundamental proposition of jurisprudence that no man is to be presumed to do any service or part with any property gratis, unless the intention to make a present of anything or of any service on his part is proved either by direct evidence by compelling inference.

19. We believe there must be a proper evaluation of the facts bearing on the exercise by the assessee of social work as an occupation of his choice. It is quite clear that he did not enter into this occupation to his own detriment or to the detriment of members of his family who were dependent on him. On the contrary, the evidence is that he forsook the security of a Government job in order to take up the occupation of social service, apparently because of the prospect it held. In these events, to hold that the assessee let himself in to do this kind of social work amongst the slums and poverty-stricken areas of Madras, expecting to live out of thin air is an inference so farfetched that it should be dismissed out of hand. There is nothing on record to show, either from the side of the assessee or from the side of the foreign missionaries, that the assessee was expected to go out of pocket while doing social service on the lines and for the purposes indicated by the Christen missions.

20. One other aspect of the discussion of this question by the Tribunal is upon a plane which we cannot understand. The Tribunal said, hypothetically, that the assessee cannot be regarded as having come by any taxable income from this occupation, even if it were assumed that he had committed breaches of trust or had misappropriated the funds which had been made available to him by the foreign missionaries. We do not see how this idea of misappropriation or breach of trust at all had come in for discussion. We have extracted earlier the relevant passage from the ITO's assessment order. There is not the slightest suggestion in that order that the assessee was quality either of misappropriation or of breach of trust. All that the officer did was to gain an overall impression of the facts and to regard whatever expenditure to which the assessee had helped himself as being a perfectly legitimate appropriation of the remittances from abroad. It is not suggested that having regard to the size of the remittances and the needs of the characterised under the assessee's management, what the assessee took for himself and fort members of his family could by characterised as breaches of trust. Indeed, the assessee has been vehemently protesting against any suggestion of that kind. We, therefore, take it that the discussion by the Tribunal in this regard was only for argument's sake, and not to render any finding that the assessee was or was not guilty even of technical misappropriation or breaches of trust. We find it difficult to believe that the assessee, who was minded to propagate the gospel according to Christ, should, in the process, commit the cardinal sin of robbing the poor-box, as it were, and still be allowed by the Christian missionaries to continue to handle their money.

21. We prefer, therefore, to judge the situation in the same way as the ITO did. We start with the unmistakable evidence of facts that the assessee is a self-employed social worker who had taken to this occupation under a preferential urgency, forsaking his Government job in the process. We also accept the position that there is no technical violation of the terms on which the foreign remittances had been pouring into his hands. We further take note of the fact that, for nearly a period of six years or so, the assessee had been in position to maintain himself and his family in reasonable comfort, all the while devoting his heart and soul to this social work. If we take all these facts into account, the overall impression which it produces is that whatever was the money which had gone into the maintenance and upkeep of the assessee and his family can only be attributed to the receipts from his profession or occupation as a social worker, legitimately appropriated by himself and for himself, if we may borrow the words of the Tribunal.

22. The Tribunal had extracted in their order quotations from the correspondence of the foreign missionaries. In some of them, the reverend gentleman had administered to the assessee, what may be described as a benign advice as to the manner of husbanding the funds and resources of the charities. In one or two of the letters, the assessee was gently chided for some act or omission, but there was no charge of any misappropriation or breach of trust. The only grievance was that the assessee had not been mailing his reports promptly. And, in any case, as the Tribunal pointed out, the Christen missions which were sending money to the assessee had no treasonable means of finding fault with him on the basis of a strict audit or verification of his affairs, short of lending their ears to officious complainants from this part of the world.

23. We are, therefore, satisfied in this case that quite within the proprieties of his occupation, the assessee has, if it is the right expression to use, helped himself from the funds of the charity. Having regard to the nature of the occupation and the fact that all other avenues of income arraigning had been hermetically sealed off for him, by his own choice, the assessee must be unquestioned expenditure which he meted out for himself and the members of his family.

24. At the end of the discussion we must hasten to point out that we are not breaking new ground in income-tax law in whatever we have said in the foregoing paragraphs. For nearly 60 years and more we in this country have been living under an express provision in the income-tax code which has not spared from the charge even windfalls, named by the statue as 'casual and non-recurring receipts', if they come into the taxpayer's hands in the exercise of a vocation or occupation. See section 4(3)(vii) of the Indian I.T. Act, 1922, and s. 10(3) of the I.T. Act, 1961. P. Krishna Menon's case : [1959]35ITR48(SC) and Rajagopalachariar's case : [1963]50ITR196(Mad) , were decided in the ways they were only under this specific statutory provision. The special merit of these two cases was only that they tended to add to the list of taxable occupation those of a vedantin and of a free-lance writer too, something of a novelty at the time when the decisions were rendered, but not now. What we have endeavoured to do in this case is no more than apply the law by looking the facts in the face, which, incidentally, is an easy thing to do if we rid ourselves of our inhibitions first.

25. Mr. K. S. Balakrishan, learned counsel for the assessee, learned heavily on a Supreme Court case to support the Tribunal's decision in his client's favour : Parmisetti Seetharamamma v. CIT : [1965]57ITR532(SC) . The case cited is well known for its factual content. The lady baring that name was originally employed at Rs. 8 a month in the Pithapuram Zamindari. She later joined the Baroda Maharani's entourage. There she became the recipient of fabulous gifts of money. The gifts ran into lakhs. The I.T. Dept. could not brook this prosperity in a one-time cooly. They treated the amount as the taxable income of Seetharamamma. When the matter reached the highest forum, however, the controversy was considered and dealt with as a pure question of evidence on the issue as to where the burden lay. The Supreme Court said that in the absence of any material on record to show that Setharamamma was engaged in any income-earning activity, the gifts cannot be dealt with as income. They rejected the Department's finding that she acted as the Maharani's agent or personal secretary, as based on no evidence.

26. We do not think, this decision affords any parallel to the present case, where, on the materials on record, the position is clear beyond doubt that the assessee as a social worker was nevertheless engaged in an occupation. Given this factual position and given the further materials on record which show that there was a regular inflow of money into the assessee's hands in the very manner of the exercise of his occupation, a part of which he had systematically appropriated to his own use, the opinion we have expressed is the only legitimate conclusion in this case.

27. We have earlier observed that Rs. 10,000 a year was estimated by the ITO as affording a reasonable basis for equating the expenditure of the assessee's family with the drawal by the assessee from the remittance abroad. We have also mentioned, that apart from the estimated sum of Rs. 10,000 each, there were also additions to that sum in each of the assessment years. The Tribunal in it order had taken the view that the remittance received by the assessee did not constitute his income an of the two ears under the appeal and the additions made by the ITO could not be sustained. This was a general, if not sweeping, conclusion. In the light of this determination, the Tribunal expressed the thought that it was not necessary for them to proceed to examine the reasons for which the individual additions were made by the ITO in the assessments. Nevertheless, the Tribunal proceeded to touch, ever so briefly, upon each and every one of the items of additions, namely, Rs. 10,000, Rs. 5,000 and Rs. 7,600 in the assessment year 1969-70, and Rs. 10,000 and Rs. 7,000 in the assessment year 1970-71.

28. We are disposed to think that the Tribunal's review of the details of the assessment orders is extremely sketchy. We feel that the Tribunal might properly have gone into the details of each and every one of the additions in greater depth. Take, for instance, the claim of the assessee's wife to be possessed of independent funds of her own. This claim was by no means proved to the hilt. On the contrary, the material on record shows that she held her position s an instructor, or teacher, in the assessee's own Sunday school establishment and not in any outside institution. We do not, however, wish to pursue this line of inquiry in view of our determination on the major issue in this case, namely, that the assessee had earned taxable income in his occupation as a social worker. In view of this conclusion of ours, there is a pressing and immediate need for the Tribunal to take up the inquiry in greater detail for the fixation of the quantum of the assessee's taxable income in each of the two assessment years.

29. The questions of law which the Tribunal's stated case carries for our opinion are propounded in the following fashion.

Assessment year 1969-70 :

'Whether, on the facts and in the circumstances of the case, the Tribunal was right in treating two sums of Rs. 5,000, being the cost of two sheds one at Villivakkam and the other at Pallavaram, and Rs. 7,600, being the amount utilized for the purchase of the car, coming out of the foreign remittance received by the assessee as not the assessee's income ?'

Assessment year : 1970-71 :

'Whether, on the facts and in the circumstances of the case, the Tribunal was right in treating the sum of Rs. 7,000, being the cost of the compound wall coming out of the foreign remittances received by the assessee, as not the assessee's income ?'

30. We have earlier remarked, in passing on the format of the questions of law. Although these questions have been framed in the way in which they were directed to be propounded by orders of this court, we find, at the end of the day, that they are in need of modification. In the first place, the figure mentioned in the questions of law disclose an omission of one important item which is common to both the assessment years, namely, the addition of Rs. 10,000. This court had omitted to refer to this addition in the question of law framed for each of the assessment years concerned. This is crucial omission, considering that the entire assessments for both the years had been set aside by the Tribunal. In view of the nature of the issues discussed by us in these reference we think it necessary to reframe the questions so as to bring out the real point in controversy between the parties. The questions are accordingly reframed and telescoped into a single question,as under :

'Whether, on the facts and in the circumstance of the case, the Tribunal was right in law in setting aside the assessments on the assessee for the assessment years 1969-70 and 1970-71 ?'

31. While formally answering the question in the negative and against the assessee, we would, however, add that this answer of ours necessitates that the Tribunal should go into the merits of each and every one of the headings under which the ITO had computed the assessee's taxable income for both the assessment years.

32. The references are disposed of accordingly. There will be no order as to costs.

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