Db Civil Misc. Review Petition v. Dy. Commissioner Of Income Tax

D.B Civil Misc. Review Petition NO.13/2011Mohd. Yusuf Vs Deputy Commissioner of Income Tax. DATE OF ORDER: 27[th] April 2012 HON'BLE MR. JUSTICE DINESH MAHESHWARIHON'BLE MR. JUSTICE C.M. TOTLA Mr. Sunil Bhandari, for the petitioner. <><><> BY THE COURT: By way of this petition, the assessee seeks review of the orderdated 24.11.2010 as passed in D.B. Income Tax Appeal No.90/2010whereby the Division Bench of this Court (Hon'ble Mr. A.M. Sapreand Hon'ble Mr. C.M. Totla,JJ.) dismissed in limine the appeal filedby him against the order dated 09.10.2009 as passed by the IncomeTax Appellate Tribunal, Jodhpur Bench, Jodhpur in AppealNo.11/JU/2004. In the order dated 24.11.2010, the Court considered thebackground aspects that the Tribunal had upheld the additionsmade by the A.O. by dismissing the appeal filed by the assessee andupholding the order as passed by the CIT (Appeal). The Courtfurther considered as to whether the appeal involved any substantialquestion of law within the meaning of Section 260-A of the IncomeTax Act, 1961 ('the Act of 1961') and noticed the substance of thematter thus: “5. The issue relates to certain additions which were made by theA.O. in the course of assessment proceedings initiated againstthe assessee under the Act. The A.O. did not accept theexplanation offered by assessee and treating the said amount tobe that of assessee added in his total income by taking recourseto Section 68 ibid. The CIT (Appeal) too upheld the additionswhen he also dismissed the appeal filed by assessee. The orderof CIT(Appeal) was then upheld by Tribunal. In other words, theTribunal too did not accept the factual explanation coupled withthe evidence tendered by assessee in relation to the impugnedA.O. in the course of assessment proceedings initiated againstthe assessee under the Act. The A.O. did not accept theexplanation offered by assessee and treating the said amount tobe that of assessee added in his total income by taking recourseto Section 68 ibid. The CIT (Appeal) too upheld the additionswhen he also dismissed the appeal filed by assessee. The orderof CIT(Appeal) was then upheld by Tribunal. In other words, theTribunal too did not accept the factual explanation coupled withthe evidence tendered by assessee in relation to the impugned DB Civil Misc. Review Petition No.13/2011Mohd. Yusuf Vs. Dy. Commissioner of Income Tax additions made by A.O. and upheld by CIT (Appeal) and heldthat since the same has not been properly explained and hence,they have to be included by adding the same while computing thetotal income of the assessee.” The Court thereafter, noticed broadly the submissions asmade on behalf of the appellant-assessee and thereafter, found nosubstantial question of law being involved in the case for thequestions sought to be raised being essentially the questions of factand for the reason that once the explanation offered by theassessee was not accepted by the Appellate Authority, the findingrecorded on such explanation was binding on the High Court. TheCourt found no substantial question of law being involved whileobserving,- additions made by A.O. and upheld by CIT (Appeal) and heldthat since the same has not been properly explained and hence,they have to be included by adding the same while computing thetotal income of the assessee.” The Court thereafter, noticed broadly the submissions asmade on behalf of the appellant-assessee and thereafter, found nosubstantial question of law being involved in the case for thequestions sought to be raised being essentially the questions of factand for the reason that once the explanation offered by theassessee was not accepted by the Appellate Authority, the findingrecorded on such explanation was binding on the High Court. TheCourt found no substantial question of law being involved whileobserving,- “10. In our opinion, therefore, once the Tribunal did not acceptthe explanation of assessee and accordingly, added certainadditions made by A.O., then it would not involve any substantialissue of law as such. In other words, this Court in its appellatejurisdiction under Section 260-A ibid, would not again denovohold yet another factual inquiry with a view to find out as towhether explanation offered by assessee and which did not findacceptance to the Tribunal is good or bad, or whether it wasrightly accepted, or not. It is only when the factual findingrecorded had been entirely dehors the subject, or that it hadbeen based on no reasoning, or based on absurd reasoning tothe extent that no prudent man of average judicial capacity couldever reach to such conclusion, or that it had been found againstany provision of law, then a case for formulation of substantialquestion of law on such finding can be said to have been madeout.” A contention was urged pertaining to Section 68 of the Act of 1961 that the loose papers could not have been treated as books ofaccounts. The Court found such contention meritless with theobservations that the loose papers were taken into account forexamining the source of income and then, factual finding wasrecorded against the appellant. The Court, therefore, observed thatthe submission urged really need not be examined as a substantialquestion of law. The Court, while observing that the Tribunal did go DB Civil Misc. Review Petition No.13/2011Mohd. Yusuf Vs. Dy. Commissioner of Income Tax into the details of the explanation given by the assessee and then did not find any merit in the explanation, proceeded to dismiss theappeal in limine in the following: “11. Learned counsel for the appellant contended that loosepapers cannot be treated as books of accounts. We find no meritin this submission. In fact, the loose papers were taken intoaccount for examining the source of income and then accordinglyfactual finding was recorded against the appellant. In view of this,the submission urged really need not be examined as asubstantial question of law. 12. In our view, no such error could be noticed by us in theimpugned order because as observed supra, the Tribunal did gointo the details of explanation offered by assessee and then didnot find any merit in the explanation. As a consequence thereof,the additions made by Assessing Officer came to be upheld. 13. We thus, do not find any merit in the appeal. It fails and isdismissed in limine by holding that it does not involve anysubstantial question of law”. This review petition, filed on 24.01.2011, remained in defect side and defects were removed on 24.08.2011. The matter was,thereafter, not listed with the office noting that the concerningDivision Bench has not formed. Be that as it may. Seeking tomaintain this review petition, the learned counsel for the petitionerstrenuously contended that the Court did not deal with all thearguments of the petitioner, particularly, those relating to Section 68of the Act of 1961 and so also Section 37 thereof. 13. We thus, do not find any merit in the appeal. It fails and isdismissed in limine by holding that it does not involve anysubstantial question of law”. This review petition, filed on 24.01.2011, remained in defect side and defects were removed on 24.08.2011. The matter was,thereafter, not listed with the office noting that the concerningDivision Bench has not formed. Be that as it may. Seeking tomaintain this review petition, the learned counsel for the petitionerstrenuously contended that the Court did not deal with all thearguments of the petitioner, particularly, those relating to Section 68of the Act of 1961 and so also Section 37 thereof. Leaving aside the competence of this petition for review, wefind the submissions not making out any case for review of the orderdated 24.11.2010 because therein, the Court has taken acomprehensive view of the matter and found the case not involvingany substantial question of law. The submissions as sought to bemade on behalf of the appellant were essentially found concerningthe issues of fact. The question as to whether loose papers could DB Civil Misc. Review Petition No.13/2011Mohd. Yusuf Vs. Dy. Commissioner of Income Tax have been treated as books of accounts for the purpose of Section68 was specifically dealt with by the Court with the observations thatsuch loose papers were taken into account so as to examine thesource of income and factual finding was recorded accordingly. TheCourt specifically observed that the submissions urged really neednot be examined as the substantial questions of law. Thesubmissions as sought to be urged before us are essentially in thenature of seeking a re-hearing of the appeal and we are of theopinion that the appellant is not entitled to seek re-hearing of theappeal by way of review petition. Though the learned counsel for the petitioner attempted toargue that several of the contentions have not been dealt withthough urged before the Court but we find the submissions lacking instrength to make out a case for review. Even if each and everysubmission, essentially pertaining to the question of fact, has notbeen dealt with elaborately by the Court, it cannot be said to beleading to such an error apparent on the face of record as to call forreview of the order impugned. To put in nutshell, it is noticed that in a comprehensive view ofthe matter, the Court found no substantial question of law beinginvolved in the matter so as to entertain the appeal of the assessee.The submissions essentially relating to the findings of fact do notmake out any substantial question of law and in any case, do notmake out a case for review of the order passed by the Court. The review petition fails and is, therefore, dismissed. (C.M. TOTLA),J. (DINESH MAHESHWARI), J.