1952 (3) TMI 56

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....ix partners of the assessee firm, and a further sum of Rs. 40,647 was brought in by five partners in the assessment year 1941-42. It has been found as a fact by the Tribunal that these amounts were actually brought in from Jaipur by means of drafts of the Imperial Bank of India, Jaipur. Therefore, we start with this position that these amounts do not represent fictitious entries but they represent actual cash received by firm through some of his partners. Now These partners were called upon to explain how these moneys were available to them in Jaipur and how they managed to get these moneys to the credit of the assessee firm, and we accept the Tribunal's finding that no satisfactory explanation was vouchsafed by any of these partners. A....

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....ame of partners or strangers, were really undisclosed profits of the firm and were not individual contribution made by partners or strangers, then it would be legitimate for the department to draw an inference that those moneys represent the undisclosed profits of the firm. But here the only finding we have from the Tribunal is that these moneys were brought in by the partners from their native place and that no adequate explanation forthcoming from the persons themselves as to where these moneys came from. Now it seems to me that the assessee firm has discharged the burden which was upon it to explain these credit entries and it has discharged the burden by satisfied the department that these entries represent genuine remittances received ....

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....pon the facts actually found. On the facts actually found and strictly confining our decision to the facts of this case we are of opinion that there were no materials on which department could have come to the conclusion that these credit represented undisclosed profits of the firm. 2. Sir Jamshedji has drawn our attention to the statement of the case where the Tribunal seems to have taken the view that the questions that had been framed and which we had asked the Tribunal to refer to us were not proper questions and they have suggested what the proper question is. In our opinion that was not the proper attitudes for the Tribunal to take. The law and procedure are perfectly clear. It is open to the assessee to apply the Tribunal to refer....