1. In this reference under Section 66(1) of the Indian I.T. Act, 1922, relating to the assessment year 1955-56, for which the accounting year ended on 31st March, 1955, the Tribunal has referred the following question :
'Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the sum of Rs. 43,288, being the amount of under-charges out of the unclaimed credit balances written off duringthe previous year was liable to be included in the assessee's total income for the assessment year 1955-56 ?'
2. The facts found and/or admitted are shortly as follows.
3. In the assessment year in question, the assessee claimed that a sum of Rs. 49,217 representing unclaimed credit balance written off during the year should not be treated as revenue receipt. Rs. 43,288 out of the said unclaimed credit balance represented under-charges in respect of the freight for the under-loaded wagons, which the customers of the assessee had to pay under the Railway Rules, in spite of the fact that the wagons in question were not loaded to their full capacity by the collieries. The assessee claimed these under-charges from the collieries. The same was passed on by the assessee to the customers who made claims in this behalf from the assessee. The ITO found that such under-charges were not credited to the account of the individual customers and held that the same represented the trading receipts of the assessee and were liable to tax. In coming to the above conclusion the ITO relied on the findings of the AAC in the appeals against assessments of the assessee for the assessment years 1953-54 and 1954-55, where a similar question arose for consideration.
4. Being aggrieved, the assessee appealed to the AAC. The AAC, relying on his own decision in respect of the said assessment years 1953-54 and 1954-55, upheld the assessment.
5. There was a further appeal by the assessee before the Income-tax Appellate Tribunal. The Tribunal found that in I.T.A. No. 11669 of 1959-60, relating to the assessment year 1954-55, the Tribunal had considered this point and, after a detailed survey of the contentions raised on behalf of the parties, had held that the authorities below were justified in assessing the amount of the unclaimed credit balance as the assessee's income from business. The Tribunal further found that the assessee secured orders for the supply of coal from permit-holders, and after obtaining such orders, in its turn, placed orders with various collieries for the supply of coal directly to the permit-holders. The price of coal charged included railway freight up to the destination. The assessee preferred claims in respect of undercharges with the collieries concerned for the excess freight paid in respect of the coal not supplied and realised the same. The amounts so realised were kept in a credit balance and the payments were made to the permit-holders/customers from these receipts as and when claims were preferred by them. After meeting such claim there was a sizeable balance left, which the assessee transferred to the profit and loss account under the head 'Miscellaneous receipts'. In the relevant year, such unclaimed credit balance amounted to Rs. 49,217. The Tribunal came to the conclusion that there was no reason to differ from the decision of the Tribunal for the previous year and accordingly held that the authorities below were right in treating this amount as the assessee's receipts from its business.
6. Dr. Debi Pal, learned counsel appearing for the assessee, contended before us, inter alia, that for several assessment years, including the assessment year 1953-54, there was a reference to this court, being Income-tax Reference No. 136 of 1970 intituled CIT v. Karam Chand Thapar & Bros. (Coal Sales) Ltd. : 117ITR621(Cal) , where a similar question was referred. The said reference was heard by this Bench and on the facts found by the Tribunal in that reference the question was answered in the affirmative and in favour of the assessee. It was, inter alia, held that the said under-charges did not constitute part of the trading receipts of the assessee and as such should not be assessed as the income of the assessee for the said assessment years. Dr. Pal, therefore, submitted that we should remand this matter to the Tribunal for a fresh hearing and, if necessary, on further facts to be ascertained by the Tribunal. In support of this submission Dr. Pal drew our attention to the fact that both the ITO and the AAC, in passing their respective orders in this assessment year, have relied on the findings made by the AAC relating to the assessment year 1953-54 in which a different conclusion has been reached by us in the aforesaid reference.
7. Mr. Ajit Sengupta, learned counsel appearing for the Revenue, contended, on the other hand, that in the said reference heard by us, the Tribunal rightly or wrongly found certain facts relating to the relevant assessment year which were not challenged. In the assessment year 1954-55 and the assessment year 1955-56, relevant to the present reference, the Tribunal has similarly found facts and drawn factual inferences therefrom which have not been challenged. Such findings have become final. The present reference has to be decided on the facts as found by the Tribunal in this year, and different facts found in another assessment year was no ground for a remand in this case.
8. The contentions of Mr. Sengupta are not without substance. It does not appear to us that any grounds have been made out for a fresh hearing or for taking fresh evidence by the Tribunal. There is no question of res judicata in the assessment proceedings and the facts found in a particular year cannot in any way affect the findings made in another assessment year.
9. In this view, the question referred is answered in the affirmative and in favour of the Revenue. There will be no order as to costs.
10. I agree.