SEN, J. - In this reference under section 66(1) of the Income-tax Act, 1922, the following question of law has been raised for the opinion of this court :
'Whether, on the facts and circumstances of the case, the assessment of the assessee under section 34(1) (a) of the Indian Income-tax Act was in accordance with la ?'
The assessee is Gurdayal Berlia, Calcutta. The assessment year is 1948-49 and the corresponding accounting year is 2004 Diwali. The assessee had been carrying on business in Calcutta from before 1943-44. For the assessment year 1948-49 an assessment was made on the 30th November, 1950, on an income of Rs. 30,000 (rupees thirty thousand), the turnover being estimated at Rs. 4,00,000 (rupees four lakhs). This was done after the assessee had appeared in response to a notice under section 23(2) and stated before the Income-tax Officer that he had been doing business on a moderate scale and kept no accounts for his business at all. On such a statement being made, the case was enquired into by the Income-tax Officer and, in the absence of any accounts or evidence in support of the return, the assessment was made under section 23(3) on the basis of the enquiries made by the Income-tax Officer.
Against the order of the Income-tax Officer the assessee appealed to the Appellate Assistant Commissioner and contended that the substance of the enquiry made by the Income-tax Officer should have been disclosed to enable him to meet the case against him and the assessment made by the Income-tax Officer. The Assistant Commissioner found that the order of the Income-tax Officer was justified and that the estimate of profit at 7.5 per cent. on the turnover of Rs. 4,00,000 (four lakhs) was correct.
The next chain of events towards the second assessment for the same assessment year 1948-49 started on the 4th December, 1951, when the assessee made a voluntary disclosure under the Tyagi Scheme stating that he had more money than what he had been previously assessed on. This statement was accepted except as to the addition of Rs. 20,000 (rupees twenty thousand). Thereafter, on the 22nd March, 1957, the Income-tax Officer sought to reopen the assessment under section 34 of the Act. This gave rise to several correspondence some of which have been incorporated in the statement of the case. After the case under section 34 was started, the Income-tax Officer held that, as the disclosure made in the assessment year 1948-49 was not full, the assessee was liable to be proceeded against under section 34 of the Act. Against this order also an appeal was preferred to the Appellate Assistant Commissioner where several grounds were taken challenging the validity of the order of the Income-tax Officer passed in the second proceeding under section 34 of the Act. He mainly contended that after he had made a voluntary disclosure, a further reassessment was uncalled for and since the original assessment had been made on an estimate without any basis either of the turnover or the rate of gross profit, the question of non-disclosure of any material fact did not arise. It was also contended that the subsequent assessment disclosed profits ranging between one per cent. to four per cent. and so there was no reason for concluding that the gross profit was seven and a half per cent. The Appellate Assistant Commissioner found that the original assessment having been made on a turnover of Rs. 4,00,000 (rupees four lakhs), which was much less than a single transaction of Rs. 6,00,000 (rupees six lakhs) with one Bombay party, there was obviously an under-assessment and section 34 applied. On the main question as agitated by the assessee whether clause (a) or clause (b) applied, the Appellate Assistant Commissioner held that the assessee did not disclose his business activities in the year of account and so clause (a) in this particular reassessment came into operation. It was also held that the confirmation of the original assessment by the Appellate Assistant Commissioner did not debar the Income-tax Officer invoking section 34(1) (a) once again, if there were reasonable grounds justifying the same. As regards the assessment of net profits, it was found that the assessee kept quiet on this matter when the Income-tax Officer assessed the profit at 7.5 per cent. and no point as to the correctness of this assessment was taken in appeal before the Appellate Assistant Commissioner. Accordingly, it was not open to him to protest against the rate being applied now.
The finding made by the Appellate Assistant Commissioner was upheld by the Appellate Tribunal. The relevant portion of the decision is quoted below :
'Having regard to the default under section 22(2) and putting the department on the wrong track as regards the existence of bank accounts and the dealings with the Bombay party, the assessee has, in our opinion, put himself within the pale of section 34(1) (a). So far as the voluntary disclosure scheme is concerned, we are not concerned with it, that being a matter solely within the purview of the revenue. But it is strange that even in a disclosure made ten months after the Appellate Assistant Commissioner had passed his order in February, 1951, the assessee kept silent about this Bombay transaction. There is also no doubt that the source for the payment of Rs. 7,340 out of Rs. 37,645 paid as income-tax has not been properly explained. In other words, he was content to have the turnover put at Rs. 4,00,000 though he knew very well that in any event it had exceeded Rs. 6,00,000 (the transactions with the Bombay party), if not more. There is thus no escape from the application of section 34. It has been urged with great emphasis that the Income-tax Officer could take action only if he had reason to believe and he cannot act upon mere suspicion. We have already met this by saying that with the knowledge that the turnover was much more than Rs. 6,00,000 the assessee was content to keep quiet when it was put at Rs. 4,00,000 by the Income-tax Officer and though it might be said that at the stage of assessment he was not aware of this estimate, he was aware of this in the appeal to the Appellate Assistant Commissioner and even then he chose to keep quiet. There is thus no substance in that objection.
The only point remaining for decision is estimation of the quantum of profit. The department seems to have put the profits at its highest at 4.5 per cent. But now 7.5 per cent. is supported on the ground that there is no evidence of the nature of the business carried on by the partnership and the assessee, being the same.'
The assessee has challenged the validity of this finding on various grounds. In the first place, he contends that an assessment under section 34(1) (a) can only be initiated when there was default under section 22(2) to file a return or default in disclosure or both. As no notice was served under section 22(2), it could not be said that there was default in submitting the return in order that the provisions of section 34(1) (a) might be attracted. Furthermore, it is urged that there was no non-disclosure as the assessment was made on the basis of the materials placed before the Income-tax Officer. He has in this connection referred to the first order of the Income-tax Officer dated the 30th November, 1950, where it has been stated that the assessee submitted a return showing income of Rs. 3,000 (rupees three thousand) only. In response to the notice under section 23(2), the assessee appeared and explained that during the year of account he had business on a moderate scale but he kept no accounts. The case was enquired into. In the absence of any supporting evidence for the return filed, the assessment was made on the basis of enquiry on Rs. 30,000 (rupees thirty thousand) under section 23(3). This order was, as stated before, confirmed in appeal by the Appellate Assistant Commissioner. In view of the order passed by the Income-tax Officer, it is contended by Mr. Roy that the Income-tax Officer accepted the position that there was no bank account of the assessee and in fact no accounts were kept. According to him, this position does not in any way warrant a conclusion that there was failure on the part of the assessee to make any disclosure of his assets and, as such, it could not give rise to initiation of the second proceeding under section 34(1) (a) by the Income-tax Officer. It will appear from a letter addressed to the assessee on the 14th August, 1957, that the Income-tax Officer proceeded on the footing that the initiation of the proceeding was commenced on some information that the assessee had purchased goods worth Rs. 6,49,000 (rupees six lakhs and forty-nine thousand) from Messrs. Parameswari Prasad Nandlal of Bombay alone, during 2003-4 Diwali. On this fact he had reason to believe that the assessees income for the assessment year 1948-49 was under-assessed and, accordingly, the proceeding under section 34(1) (a) was started. It has been urged that the expression 'information' as used by the Income-tax Officer in his letter debars him from starting a proceeding under section 34(1) (a). This, according to Mr. Roy, clearly beings the case within the ambit of clause (b) of section 34(1) and, therefore, the second proceeding is clearly barred by limitation as it was not started within four years of the end of the assessment year 1948-49. Clause (b) runs as follows :
'Notwithstanding that there has been no omission or failure as mentioned in clause (a) on the part of the assessee, the Income-tax Officer has in consequence of information in his possession reason to believe that income, profits or gains chargeable to income-tax have escaped assessment for any year, or have been under-assessed, or assessed at too low a rate, or have been made the subject of excessive relief under this Act, or that excessive loss or depreciation allowance has been computed, he may in cases falling under clause (a) at any time and in cases falling under clause (b) at any time within four years of the end of that year, serve on the assessee...... a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of section 22 and may proceed to assess or reassess such income, profits or gains or recompute the loss or depreciation allowance; and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub-section.'
Mr. Pal, the learned counsel for the respondent, submits that clause (b) of sub-section (1) of section 34 is only attracted where there has been no omission or failure of either type as stated in section 34(1) (a) on the part of the assessee. Where, however there is an omission or failure on the part of the assessee within the meaning of clause (a), it is open for the department to initiate proceedings under section 34(1) (a), if it transpires that the assessee had much higher income or had other dealings than what was already disclosed by the assessee. Therefore, the question arises for consideration whether the assessee failed to disclose fully and truly all material facts at the time of the first assessment. This position in law is not however disputed by Mr. Roy, as the sheet anchor of the assessees case is that there was full disclosure at the time of the first assessment. He wants us to believe that since the Income-tax Officer had accepted the position that the assessee had a modest income and had no bank account or any other dealings there was an end of the matter. On a careful consideration of the order dated November 30, 1950, it appears that it is an innocuous or a colourless one and does not in any way show that he had accepted the position that full disclosure was made, within the meaning of section 34(1) (a) of the Act.
Mr. Roy has tried to make out a strong case for his client as the word 'information', which appears in clause (b) only, has been used by the Income-tax Officer and the appellate authorities in their orders under section 34(1) (a). This, according to Mr. Roy, shows a blatant irregularity in the procedure adopted by the said authorities. We do not think that this contention is correct. What appears from their order is that they were not oblivious of the fact that there was failure or omission on the part of the assessee to disclose material facts at the time of the first assessment and when they were apprised of the factum of non-disclosure regarding the Bombay transaction, reasonable grounds arose for initiating a case under section 34(1) (a) of the Act. This being the position, the word 'information' has been used not with reference to the special import conveyed by it in section 34(1) (b). This will be borne out by the fact that the assessee admitted to have received the second notice under section 34(1) (a) (vide grounds of appeal, annexure 'A') and not under section 34(1)(b) and further it appears quite clear that when he made out a case that he had an annual income of Rs. 3,000 only, it could never be presumed that a 'modest businessman' like him should be entirely oblivious of a memorable transaction with the firm of Parameswari Prasad Nandlal of Bombay regarding purchase of chemical goods worth Rs. 6,49,000 (rupees six lakhs and forty-nine thousand). There cannot be a letter instance of non-disclosure and we are of opinion that the Income-tax Officer was justified in initiating a second proceeding under section 34(1) (a). In support of our observations reference may be made to a Supreme Court decision in Calcutta Discount Co. Ltd. v. Income-tax Officer, Companies District I, Calcutta. At page 201, bottom, their Lordships were pleased to observe as follows :
'The position, therefore, is that if there were in fact some reasonable grounds for thinking that there had been any non-disclosure as regards any primary fact, which could have a material bearing on the question of under-assessment, that would be sufficient to give jurisdiction to the Income-tax Officer to issue the notices under section 34. Whether these grounds were adequate or not for arriving at the conclusion that there was a non-disclosure of material facts would not be open for the courts investigation. In other words, all that is necessary to give this special jurisdiction is that the Income-tax Officer had when he assumed jurisdiction some prima facie grounds for thinking that there had been some non-disclosure or material facts.
Clearly it is the duty of the assessee who wants the court to hold that jurisdiction was lacking, to establish that the Income-tax Officer had no material at all before him for believing that there had been such non-disclosure.....'
Following this decision, it appears to us that the Income-tax Officer in the instant case acted within his jurisdiction in initiating the proceeding under section 34(1) (a) for the second time, when he thought that there was a non-disclosure of a primary fact at the time of first assessment, viz., of the Bombay transaction referred to before, which could have a material bearing on the question of 'under-assessment'. Mr. Roy has referred us to a decision in M. O. Thomakutty v. Commissioner of Income-tax. The Kerala High Court has reiterated the principle of law decided in the Calcutta Discount case stated above and has decided, inter alia, that if the assessee does not disclose his entire income, but only returns a part, there is an omission in his part to disclose fully and truly the material facts of his total income and section 34(1) (a) is attracted. There is, however, a distinguishing feature in this Kerala decision which is absent in the instant case. It has been observed by their Lordships that there is merit in the final contention that was raised on behalf of the assessee. There is nothing to indicate that at the time the assessee filed his return, his accounts relating to his Cochin business had been completed and that he knew exactly what his income was from that business. In the return he had only estimated that income to the best of his belief. The fact that when the accounts were finally closed, it was seen that the income was actually much more, is not sufficient to hold that the assessee had not truly and fully disclosed his income, unless there is material to show that the assessee knew at the time he submitted his return that his income was not that which was estimated by him. This observation, in our opinion, does not help the assessee in any way as the assessee in the reported decision really made a full disclosure as to the apparent state of things in the business accounts which were not finalised. He was rather compelled to make a return on an estimated return which he might have obtained out of the transaction, lest he be found guilty of non-disclosure. Such is not the case here inasmuch as we have already shown that there was absolutely no disclosure of the material facts, although the assessee in the instant case happened to know the Bombay transaction which was a fait accompli at the time of submitting the first return.
Upon hearing the learned counsel of both the sides, we are of the view that the first contention raised by Mr. Roy is not sustainable in law. He has stated that proceedings under section 34(1) (a) can be started if there is some failure on the part of the assessee to disclose fully or truly all necessary facts for assessment of a particular year. Such action under section 34(1) (a) could also be taken if there is omission or failure on the part of the assessee to make a return. In this particular case there was a clear omission or failure on the part of the assessee both to file a return under section 22(2) and to disclose fully and truly all material facts. Accordingly, the first contention that the proceeding was started in the garb of section 34(1) (a) cannot be upheld nor can it be said that the plea of limitation as stated in clause (b) is attracted.
The second contention of Mr. Roy, although abandoned at a later stage, is that where once an assessment is made under section 34(1) (a), the second assessment under this clause is unwarranted by law. Without entering into details, it may be said that it is not tenable in view of the decision of this court in Jagmohan Goenka v. K. D. Banerjee where Sinha J. has decided that within the time-limit specified in section 34 of the Indian Income-tax Act, 1922, there is no restriction as to the number of proceedings that can be taken to reopen the assessment whether by way of assessment or reassessment, computation or recomputation.
The next contention, as urged by Mr. Roy, is that this court should interfere, as on the following matters the findings of the Tribunal were based on no evidence at all :
(a) There was default in filing the return under section 22(2).
(b) The department was put on a wrong track by the assessee with regard to the bank account and dealings with the Bombay party as aforesaid.
(c) There was an outright purchase and sale regarding the Bombay transaction and such a transaction is not in the nature of a brokerage transaction.
(d) There was no account and, therefore, the rate of profit was Rs. 7.5 per cent.
According to Mr. Roy, as the word 'the assessment' used in the question embraces the element of initiation, continuation and termination of proceedings under section 34(1) (a), and as it starts with the all-comprehensive words 'whether, on the facts and circumstances of the case....', this court can enter into the question whether the Tribunals finding is based on evidence. It may be said at the outset that routine expressions like that do not entitle the court to deal with a question of law in respect of which there has been no application for reference. It appears from the paper-book that the assessee, while making an application under section 66(1), did not challenge that the findings of fact made by the Tribunal on the above points were based on no evidence or were, as a matter of fact, perverse. It will appear from page 43 of the paper-book, annexure 'B', that as many as seven questions were submitted before the Tribunal for a reference under section 66(1) of the Act. Questions Nos. 4, 5 and 6 are very relevant and they run as follows :
'Question No. 4. - Whether, in view of the fact that the assessments in both the proceedings under section 34 of the Indian Income-tax Act for the assessment year 1948-49 were made under section 23(2) of the Act, was the department estopped from raising the question of existence of the alleged bank account of the assessee for the purpose of determining the question of validity of the second assessment proceeding under section 34(1) (a) of the Ac ?
Question No. 5. - Whether, on the facts and circumstances of the case, initiation of the second proceeding under section 34(1) (a) of the Indian Income-tax Act for the assessment year 1948-49 was justified in la
Question No. 6. - When the assessee, not having maintained any accounts, assessment for the assessment year 1948-49 was made under section 34 read with section 23(3) of the Indian Income-tax Act, on an estimate based on information in the possession of the Income-tax Officer regarding the business transactions of the assessee, was the initiation of the second proceeding for the said year under section 34(1) (a) of the Act, on the basis of further information regarding the business transactions of the assessee coming later on into the possession of the Income-tax Officer, justified in la ?'
In reply, the Commissioner of Income-tax suggested that question No. 5 should be reframed as follows :
'Whether, on the facts and in the circumstances of the case, the assessment of the assessee under section 34(1) (a) of the Income-tax Act was in accordance with la ?'
While suggesting the above question, it was submitted that questions Nos. 4 and 6 were mere heads of argument which would be available to the assessee within the framework of the question suggested above. It appears from the questions suggested by the assessee that all of them refer only to the initiation of proceedings under section 34(1) (a) and nowhere, in the suggested questions, it has been made out that the factum of continuation and termination of the proceeding under this section is also sought to be challenged on the ground that there is no evidence for a finding on all these points against the assessee.
The Tribunal, on the above materials, found that only the question referred to us is relevant for this courts decision. On a consideration of the question referred to us and the above facts, we can come to the only conclusion that justifiability or otherwise as to initiation of proceedings under section 34(1) (a) was aimed at. The matter bearing upon this aspect of the question had already been dealt with by us. In the absence, however, of specific questions directed against the findings of fact as stated before, there is no reasonable ground for holding that they should be interfered with by this court. Some questions were, however, sought to be raised by the assessee on factual aspects in his application for reference but, as they have been specifically refused by the Tribunal, it was open to the assessee to move this court for a direction upon the Tribunal to refer those questions to this court under section 66(2) of the Act. As no such step was taken, it is now futile to agitate such questions in an application under section 66(1) of the Act.
Mr. Roy has further contended that such a decision, as stated above, is not tenable in view of the Supreme Court decision reported in the case of Liquidators of Pursa Ltd. v. Commissioner of Income-tax. He has referred us to the relevant headnote, which runs as follows :
'Although the High Court will not disturb or go behind the finding of fact of the Tribunal, where it is competent for a Tribunal to make findings of fact which are excluded from review, the appeal court has always jurisdiction to intervene if it appears either that the Tribunal has misunderstood the statutory language - because the proper construction of the statutory language is a matter of law - or that the Tribunal has made a finding for which there is no evidence or which is inconsistent with the evidence and contradictory of it.'
From this observation it has been sought to be made out that, although this court has an advisory jurisdiction, yet, in suitable cases, it can, like an appellate court, interfere with a finding of fact where it is inconsistent with the evidence. Firstly, it may be said that this observation was made on an entirely different set of facts, and secondly, it appears that their Lordships made a distinction between the powers of the High Court under section 66 of the Act and of the appellate court. The High Court, according to their Lordships, cannot disturb the finding of fact made by the Tribunal in cases mentioned in the above headnote, but the appellate court, presumably the Supreme Court, which is the appellate court of the High Court, may interfere in circumstances stated therein. The matter has, however, been clarified by the Supreme Court in another decision in Rajputana Textiles (Agencies) Ltd. v. Commissioner of Income-tax. It has been decided, inter alia, that as the appeal by special leave was against the judgment of the High Court in its advisory jurisdiction on a reference, the jurisdiction of the Supreme Court in Appeal was of the same character and, therefore, any question which was not referred to the High Court could not be allowed to be raised before it. Consequently, any constitutional question in regard to discrimination under article 14 of the Constitution could not be raised before the Supreme Court in the appeal.
In view of the latter decision, however, we must hold that, in our advisory jurisdiction, we cannot enter into the evidence for a decision that the findings of fact made by the Tribunal was erroneous in law.
In support of our findings made in the foregoing paragraphs, reference may be made to the relevant portion of the Supreme Court decision in Guru State v. Commissioner of Income-tax. At page 58, their Lordships have observed as follows :
'At the hearing of the reference the High Court addressed itself to a question which was not referred by the Tribunal. The High Court on the assumption that a trust was intended to be created by the pilgrims by giving annadan proceeded to hold that the trust was a private trust. In so holding the High Court attempted to exercise not the advisory jurisdiction in respect of the decision of the Tribunal which alone is conferred by section 66(2) of the Indian Income-tax Act, but jurisdiction which in substance was appellate. The Tribunal had recorded a finding that there was in fact no trust intended or created by the pilgrims. On that finding no question as to the applicability of section 4(3) (i), in any event, could arise. It was open to the assessee to demand that a question that the finding was based on no evidence or that it could not reasonably be arrived at by any person acting judicially and properly instructed as to the relevant law (sic). Some vague statement was made in the application to the High Court for an order for calling for a statement of the case that the finding was based on no evidence, but the High Court was not asked to call upon the Tribunal by an order under section 66(2) to submit a statement on the question that the finding that there was no trust was based on no evidence. On the question referred, the High Court was bound to accept the findings of the Tribunal and to decide the question of law, if any, arising therefrom.'
Mr. Roy contends that this decision was made on a different set of facts and, therefore, the principle of law enunciated therein does not apply to the instant case. We do not agree with Mr. Roy as it is quite clear that a general principle of law has been decided by their Lordships of the Supreme Court as they have observed that the High Court can only deliver its opinion provided a question of law has been actually raised and unless such is the position, it cannot express any opinion that the finding of fact made by the Tribunal was wrong.
Mr. Roy has referred to us a plethora of decisions for convincing us that we are taking a wrong view of the matter. He has continuously harped on his theory that, even when there is a flagrant non-observance of the fundamental evidence on record, this court can also interfere. Before parting with this case we like to refer to one of them which is in Commissioner of Income-tax v. Calcutta Agency Ltd. It was decided that the jurisdiction of the High Court in the matter of income-tax reference made by the Appellate Tribunal under the Income-tax Act is an advisory jurisdiction and, under the Act, the decision of the Tribunal on facts is final, unless it can be successfully assailed on the ground that there is no evidence for the conclusion on facts recorded by the Tribunal. It is, therefore, the duty of the High Court to start by looking at the facts found by the Tribunal and answer the question of law on that footing. Any departure from this rule will convert the High Court into a fact-finding authority which does not come under the advisory jurisdiction. This decision in our opinion does not also help the assessees contention as in the reported decision it appears that a specific question was raised as to whether there was material on the record to show that the decision of the Appellate Tribunal was based on no evidence and in that context the above decision was made. Such is not the case here and, therefore, the last contention raised by Mr. Roy must also fail. Our conclusion may, therefore, be summarised as follows :
(1) The Income-tax Officer was justified in initiating a proceeding under section 34(1) (a) of the Act in view of the facts and circumstances of the case and that the Appellate Tribunal did not commit any error of law in coming to such a finding. It can nowhere be found that a proceeding under section 34(1) (a) was started in the garb of a proceeding under section 34(1) (b), and, consequently, it was not barred by limitation.
(2) The second preceding under section 34(1) (a) is justified, as it was started within the period of limitation provided for in section 34. The Tribunal was also justified in law in finding that there was a definite non-disclosure by the assessee at the time when the first assessment was made for the assessment year 1948-49.
(3) In the absence of any specific question being referred to us that the Tribunals finding was based on no evidence or it was perverse, there is no scope for reversing the findings of facts as pointed out to us by the learned counsel for the assessee. If the assessee was really aggrieved by such a finding, it was necessary for him to proceed under section 66(2) of the Act. As the assessee did not take recourse to such a procedure, this court is bound to accept the findings of the Tribunal and to decide the question of law arising therefrom.
In the above premises, our answer to the question is in the affirmative.
The applicant will pay costs to the respondent.
SANKAR PRASAD MITRA J. - I agree.
Question answered in the affirmative.