2006 (8) TMI 98

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....ng question; "Whether on the facts and in the circumstances of the case the tribunal was justified in holding that no valid trust came into existence on the basis of alleged deed dated. April 20, 1982/September 20, 1982 and the assessed income as computed by the ITC should be subject to tax at rates as applicable to A.O.P. Under the Act ?' 3. It is to be noted that Reference Application No. 1465/Ahd/1994, 1466/Ahd/1994 and Reference Application No. 1467/Ahd/1994 were made by the concerned assessee for referring various questions. Reference Applications were heard and ultimately in relation to 8 questions proposed in the abovereferred 3 applications, one single question, as referred to above, has been referred to this Court for opinion....

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....of Income-tax (Appeals) called for Remand Report from the Assessing Officer as per his order dated October 6, 1986. The Remand Report was received by the Commissioner of Income-tax (Appeals) vide Assessing Officer's letter dated January 20, 1990, the Report was against the interests of the assessee. The Commissioner of Income Tax (Appeals), after hearing the parties and not agreeing with the Remand Report, observed that there was an arithmatical/clerical mistake in mentioning the date of execution of the document as '20th April 1982' because in fact the document was executed on 20th September 1982'. He also observed that the attending circumstances like minutes book recorded and cash book opened by the assessee, the opening of the Bank acco....

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....and difference in place of execution/attestation, or difference in the signatures and execution of the document on a date prior to the date of the purchase of the stamps were in fact not argued. He submits that the Income Tax Appellate Tribunal was absolutely unjustified and from the frame of the question proposed by the assessee it would clearly appear that the assessee all throughout had been contending that he was condemned unheard. On the other hand, learned counsel for the Revenue submits that from a perusal of the order passed by the Income Tax Appellate Tribunal and Paragraph 7 of the Statement of the Case made by the Tribunal it would clearly appear that not only the questions were raised and argued by the Revenue but those were pro....

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....ion of the order passed by the Income Tax Appellate Tribunal. If on two available opportunities such affidavit is not filed, then it will have to be presumed that the assessee was not aggrieved by or was not taking an exception to the record of the case. Under the circumstances, the Question No.1 proposed in Reference Application No. 1465/Ahd/1994 may come within the sweep of the final questions, but will have to be answered against the interests of the assessee. 8. The Assessing Officer, so also the Tribunal, to hold that the Trust Deed was sham and bogus and was ante-dated, have relied upon certain facts which are as follows; (1) The Stamp paper was purchased in the name of M/s. Shivalaya Construction Company; (2) The document is....

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.... which was very heavy upon the assessee. According to him, the date of the document is 20th April 1982, but the stamp was purchased on 5th July 1982. He submits that if on comparison of the attending circumstances the Tribunal has recorded a finding then that would be a finding of fact and in any case this Court would not be entitled to reverse the findings unless the findings are perverse or such which could not be arrived at by a prudent person. 11. We have gone through the order passed by the Tribunal. We have also gone through the order passed by the learned Commissioner of Income Tax (Appeals). 12. The Tribunal, in its detailed order, has referred to every question raised by the parties. Not only that, it has referred to each and....