AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
1959 (8) TMI 46
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....recorded on oath in clear violation of section 37 of the Indian Income-tax Act, would be admissible in evidence and could be acted upon in holding the sum of Rs. 85,050 kept as deposits to be the income of the assessee? 2. Whether the affidavits filed by the depositors before the learned Appellate Assistant Commissioner, admitting the said deposits to be their own moneys, could not be relied on and acted upon in law, in the absence of any rebutting evidence, without an examination of the persons filing the affidavits? 3. Whether the entries in the books of account of the assessee kept in regular course of business showing the deposits in the names of remaining depositors, whose statements were not recorded under section 37 of the Inco....
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....m the above-named persons with a view to meet his liabilities to certain Calcutta parties. The alleged depositors were found to be all cultivators by profession, and the Income-tax Officer issued summonses under section 37 of the Indian Income-tax Act to the first eight persons for examination, but only one of them, namely, Suraj Mia, appeared before him, and the last depositor, Md. Talim, was also produced before him, and they were examined by the Income-tax Officer in the presence of the assessee or rather his representative. They did not support the entries as such or the deposits shown to their credit. Their statements were recorded by the Income-tax Officer, but they were administered no oath prior to the recording of their statements.....
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...., these affidavits did not show the real state of things--the alleged depositors having had at no time any sizable amount to their credit. He finds categorically that some of the alleged depositors had financial transactions with the assessee during the accounting year concerned other than the cash deposits in question, and it is seen from those transactions that petty amounts were being deposited by them from time to time followed by withdrawals at short intervals, leaving practically no balance to be carried forward for the next year. In consideration of the circumstances, he held that the entries in the assessee's books were not correct and the affidavits filed could not be believed. He accordingly affirmed the finding of the Income-....
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.... income of the assessee. On a reference to section 37 of the Act, it would appear that it gives the Income-tax Officer, Appellate Assistant Commissioner, Commissioner and Appellate Tribunal the powers as vested in a court under the Code of Civil Procedure, 1908, when trying a suit in respect of the following matters, namely: (a) discovery and inspection; (b) enforcing the attendance of any person, including any officer of a banking company, and examining him on oath; (c) compelling the production of books of account and other documents; and (d) issuing commissions. Section 37(1)(b) provides that the officers named in the section have the power of "enforcing the attendance of any person, including any officer of a banking comp....
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..... The second point which I have already quoted raises the question as to whether the affidavits filed at the appellate stage before the Appellate Assistant Commissioner were conclusive on the point under investigation, and whether the Appellate Assistant Commissioner was obliged to act upon the same in the absence of any rebutting evidence. The portion of the judgment of the Assistant Commissioner on this particular point has been placed before us, and we find that he has given his own reasons as to why he preferred to reject the affidavits field by the alleged depositors. His finding is purely a question of fact and we find no illegality in arriving at the same, nor do we consider it to be perverse. It is not necessary in all cases that....
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.... or what he will reject. He can take into consideration all relevant and admissible evidence rather in a wider sense than strictly legal and, therefore, there was nothing wrong in rejecting the statements contained in the affidavits of persons who did not offer themselves for interrogation before the Income-tax Officer concerned. The fourth point really summarises the earlier contentions raised in the above three points. Those points being decided against the assessee, this point also must be answered in favour of the Department. In our opinion, therefore, the reference is disposed of as indicated above, and all the points are answered in favour of the Income-tax Department. The assessee is to pay the costs of this reference, which we....