CHAKRAVARTTI, C.J. - (1.) IN our opinion, the statements in the case referred are clearly insufficient to enable us to determine the question raised. The appellate order passed in the case is a striking example of what appellate orders should not be and the statement of the case itself is an example of the consequences that must sometimes follow when the appeal is heard by two particular members of the Tribunal and the reference is made by two other members.
(2.) THE question raised in the case is whether there was any material before the Tribunal on which it could be held that the gold which the assessee sold in the accounting year had been purchased in the year 1918 and that the amount entered in the books represented the proceeds of that sale. THE amount in question is Rs. 72,523 and it appears in the books of the assessee in the name of his father. THE assessee's explanation was that he had purchased some gold in 1918 at Bombay and had kept it with him till the accounting year when he had sold it for the sum entered in the books and that it had been entered in his father's name, because such was the Marwari custom. Except the statement of the assessee that the gold had been purchased in 1918, there was no evidence either in the shape of the books of the assessee himself or papers of the party from whom the purchase had been made. Both the ITO and the AAC held that the purchase of gold in 1918 had not been proved and in their view the gold, the sale of which had yielded the sum found in the books, had been purchased with secret profits of the assessee. This finding of the ITO and the AAC was reversed by the Tribunal by an order which reads like an order passed by Honorary Magistrates at summary trials. All that the Tribunal says is the follows : "We have heard the parties at some length and examined the personal history of the appellant. On the whole, the impression left in our minds is that his explanation has the ring of truth. We accept it and exclude the sum of Rs. 72,523 from assessment". The appeal was heard and disposed of by Mr. K. N. Rajagopal Sastri and Mr. A. L. Sahgal. The application for a reference to this Court, however, came to be heard by Mr. A. R. Aggarwal and Mr. B. M. Chatrath. In view of the nature of the question raised there was naturally some argument before the Tribunal when it was hearing the application for a reference, as to the material on which the Appellate Bench of the Tribunal had proceeded. The Commissioner contended that there was no previous history of the appellant at all which could have been examined by the Tribunal whereas the assessee's reply was that he had been orally examined. The two members of the Tribunal who were hearing the application were themselves helpless, because they had no personal knowledge of the matters and, therefore, they contended themselves with including in the statement of the case the rival contentions of the parties. It need hardly be pointed out that whether or not the Tribunal, when hearing the appeal had any further material before it is one of utmost importance. The Bench which was dealing with the application for a reference might have referred to the two members who had heard the appeal or, at least, referred to the records of the appeal and said in the statement of the case whether the assessee had actually been examined by the Appellate Bench of the Tribunal as alleged or, at least, whether the records of the appeal contained any record of such examination. If this Court is asked to say whether there was any material before the Tribunal on which it could come to a particular finding, and if with regard to the presence or absence of a particular piece of material there are only rival contentions of the parties, serious difficulty is created for this Court which, in my view, ought not to be created. It is impossible to see how the two members of the Tribunal, who were making the reference, could have thought that this Court could be reasonably asked to answer the question referred by them unless they said whether or not there had been before the Appellate bench of the Tribunal some material in addition to the material that had been considered insufficient by the authorities below.
(3.) WE must, therefore, send the case back in exercise of our powers under s. 66(4) of the Act. WE direct the Tribunal to draw up and forward to this Court a supplementary statement as to the manner in which the Appellate Bench of the Tribunal "examined the personal history of the appellant". It should be stated : (a) whether the assessee was examined at all by the Appellate Bench of the Tribunal ; (b) if he was, whether there is on the record any record of that examination ; (c) if there be, what that record is ; (d) even if there be no record of any examination of the assessee, whether he was examined in fact ; and (e) if he was examined in fact but no record of the examination was made, whether it is possible for the members who had heard the appeal to remember what he had said. Let a copy of this order be sent to the Tribunal. The supplementary statement should be submitted to this Court within six months from the receipt of this order.;