Kerala H.C : Should not the Tribunal have held that s. 68 can apply only if the cash credits are found in the books of the applicant himself and not in the books of the firm of which he was only a partner ?

Counsel Appeared

Jose Joseph, for the Assessee : P.K.R. Menon, for the Revenue

K.S. PARIPOORNAN, J. :

At the instance of the assessee and as directed by this Court in Original Petition No. 6578 of 1982, the Tribunal has referred the following question of law for the decision of this Court : “Should not the Tribunal have held that s. 68 can apply only if the cash credits are found in the books of the applicant himself and not in the books of the firm of which he was only a partner ?”

The petitioner is an assessee to income-tax. The matter relates to the year 1975-76. The respondent is theRevenue. There were huge additions to the income returned by the assessee/petitioner under the head “Other sources”. The Tribunal, by its order dt. 30th Sept., 1981, sustained the addition to the extent of Rs. 85,000. Though the petitioner/assessee filed an application to refer a question of law which, according to him, arose out of the order of the Tribunal, the Tribunal declined the request. Thereafter, the assessee moved this Court in 0. P. No. 6578 of 1982 and this Court, by judgment dt. 3rd Dec., 1984, directed the Tribunal to refer the question of law formulated hereinabove for the decision of this Court. Accordingly, the Tribunal has referred the above question of law for the decision of this Court.

We heard counsel. On a bare perusal of the statement of the case, it is seen that the question as to whether s. 68 of the IT Act can apply only if the cash credits are found in the books of the assessee himself and not in the books of the firm of which he was only a partner, was not raised before the Tribunal and was not considered by it. Para 4 of the statement of the case dt. 29th April, 1985, makes this position clear. If the said question was not raised nor argued nor considered by the Tribunal, it cannot be said that the question now referred by the Tribunal is one which arises out of the order of the Tribunal. Even if this Court has directed the Tribunal to refer such a question, this Court is not bound to answer the said question when it finally comes up for decision. [See CIT vs. Smt. Anusuya Devi (1968) 68 ITR 750 (SC)].

In the light of the categoric finding in the statement of the case, we hold that the question referred to us by the Tribunal does not arise out of the order of the Tribunal. So, we decline to answer the question referred to us.

[Citation :181 ITR 357]