MRIGANKA MOHAN SUR Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) This reference under Section 256(2) of the I.T. Act, 1961, is at the instance of Mriganka Mohan Sur, the assessee, and arises out of a reassessment for the assessment year 1946-47, the relevant previous year being the financial year 1945-46.

(2.) The original assessment for the said assessment year was made on the 23rd June, 1948. On receipt of information that the assessee was the proprietor of a business known as the Oriental Traders of No. 70, Serpentine Lane, Calcutta, which had an account in its name in the Dharmatolla Branch of the Hooghly Bank Ltd., the ITO reopened the said assessment on the 29th March, 1951, under Section 34 of the Indian I.T. Act, 1922. The assessee appeared through his authorised representative at the said reassessment proceeding though he was directed to appear personally in the course of which it was admitted that the assessee had two accounts in the said bank not disclosed in the original assessment. The pass book of only one of the said accounts was produced. From the copy of the accounts of Oriental Traders obtained by the ITO it appeared that the sole proprietor of the said business was one Mriganka Mohan Sur. The other records in respect of the said account were not available as many of the old records up to 1946 were destroyed in fire and the rest of such records shifted to the bank's godown remained unsorted packed in gunny bags. The ITO found that the assessee had several accounts in the said bank, was well known to the bank authorities and the assessee's cousin was a director of the bank. It was also found that the assessee had one-third share in the said premises No. 70, Serpentine Lane, Calcutta, and that there was no other person at the said premises having the same name and surname as that of the assessee. The denial of the assessee that he had any connection with the said Oriental Traders and its bank account was not accepted by the ITO who held that the said bank account in the name of Oriental Traders was that of the assessee. The reassessment was made accordingly.

(3.) Being aggrieved, the assessee appealed to the AAC, who held that complete records from the bank not being available and by reason of the specific denial of the assessee of having any connection with the said Oriental Traders or with its bank account, the ITO had no positive material or conclusive evidence for holding that the said business of Oriental Traders was carried on by the assessee. Accordingly, he allowed the appeal partly.