Commissioner of Income-tax Vs. Sambhudayal Dwarkadas - Court Judgment

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- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - 5. on applications for reference, the tribunal held as under :it will suffice to say that the tribunal came to the conclusion that the return had been filed by the assessee under section 139(4) and, therefore, no order of assessment could be made any time after the expiry of one year from the date of filing of return in accordance with the provisions of section 153(1)(c). in the opinion of the tribunal, therefore, the commissioner of income-tax rightly cancelled the assessment being barred by limitation which finding was endorsed by the tribunal.a.r. tiwari, j.1. the commissioner of income-tax, bhopal, has filed these four reference applications under section 256(2) of the income-tax act, 1961 (for short 'the act'), seeking direction to state the cases to this court and to refer the common question of law as proposed in these applications arising out of the order dated july 8, 1993, passed in i.t.a. no. 530/ind of 1991, i.t.a. no. 529/ind of 1991, i.t.a no. 528/ind of 1991 and i.t.a. no. 192/ind of 1991, respectively. the question of law is extracted below :'whether, on the facts and in the circumstances of the case, the tribunal was justified in law in holding that reopening of assessments under section 147(a) by issue of notice under section 148 by the assessing officer was not proper ?'2. the facts lie in a narrow compass. the assessee filed the return of income. the assessment was framed on the basis of the return under section 144 of the act. in appeal, the appellate authority noted that without processing the return filed by the assessee, the assessing officer had served notice under section 148 of the act. he found that in the circumstances notice under section 148 was not valid as the assessee had filed the return under section 139(4) of the act which was pending with the assessing officer when the notice for reassessment was issued. it was, therefore, held that the order of assessment was barred by limitation. the applicant, therefore, filed appeals before the tribunal which upheld the order of the first appellate authority. the applicant then filed the applications seeking statement of the cases and reference of the question. the applications were rejected. hence, the department filed these reference applications.3. we have heard shri d.d. vyas, learned counsel for the applicant and shri k.b. joshi, learned counsel for the non-applicant.4. the conclusion that the proceeding was barred by limitation and as such the authority had no jurisdiction to proceed in the matter is based on an appreciation of facts and does not give rise to any question of law.5. on applications for reference, the tribunal held as under :'it will suffice to say that the tribunal came to the conclusion that the return had been filed by the assessee under section 139(4) and, therefore, no order of assessment could be made any time after the expiry of one year from the date of filing of return in accordance with the provisions of section 153(1)(c). in the opinion of the tribunal, therefore, the commissioner of income-tax rightly cancelled the assessment being barred by limitation which finding was endorsed by the tribunal. at the hearing, despite our pointing out, nothing could be shown to suggest that the facts recorded by the tribunal were incorrect much less perverse. it is, therefore, obvious that these facts do not give rise to any question of law within the meaning of sub-section (1) of section 256 of the income-tax act. in the result, the reference applications stand dismissed.' 6. no reappraisal of the evidence can be made when the conclusion is about the limitation. in dudh nath pandey v. suresh chandra bhattasali : air1986sc1509 , it is held as under (headnote) :'the high court in exercise of its power under section 100 of the civil procedure code cannot make a fresh appraisal of the evidence and come to a different finding contrary to the finding recorded by the first appellate court. the finding on the question of limitation recorded by the first appellate court on appraisal of evidence after taking into consideration the entire circumstances in the case is a finding of fact which cannot be set aside by the high court in the exercise of the power under section 100 of the civil procedure code.'7. the finding of fact, not shown to be perverse or perishable, reached by the tribunal did not give rise, as held in cit v. ashoka marketing ltd. : [1976]103itr543(sc) and cit v. kotrika venkataswamy and sons : [1971]79itr499(sc) , to any question of law.8. in the result, we find that no question of law arises out of the order of the tribunal. the question as proposed is the product of appreciation of the facts and the appreciation is not shown to be perverse or perishable.9. in the result, we reject these reference applications but without any order as to costs.10. this order shall be retained in miscellaneous civil case no. 553 of 1994 and a copy thereof shall be placed in the connected records ofmiscellaneous civil cases, as particularised above, for ready reference.