TaxTMI 
TaxTMI 
1991 (9) TMI 48
X X X X Extracts X X X X
X X X X Extracts X X X X
....e circumstances of the case and also in the light of the facts repeated in the enclosure to the reference application, the Hon'ble Tribunal is justified in coming to the conclusion that the applicant had not carried on any business during the previous year ended March 31, 1974, and incurred business loss and hence rejecting the claim for set off of business loss against capital gains ? (ii) On the facts and in the circumstances of the case, was the Tribunal correct in concluding that the assessee had done no business during the previous year 1973-74 ? (iii) On the evidence placed by the assessee, was the Tribunal justified in rejecting the claim of the assessee for set off of the loss incurred in the disposal of the stock-in-hand duri....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Appellate Tribunal to refer two questions in addition to the one formulated in the application filed under section 256(1) of the Act. We should say that it is not open to the petitioner to do so. The original petition filed praying that this court refer three questions formulated in paragraph 20 of the original petition will not lie. To that extent, the prayer in the original petition is unsustainable. It cannot be granted. On this short ground, the original petition should fail. However, the first question formulated in paragraph 20 of the original petition is the question that was formulated in the application filed before the Tribunal under section 256(1) of the Act. Therefore, we proceed to consider the said question. The short ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ber 5, 1984, etc., and the assessee filed the return of income on November 6, 1984, declaring a loss of Rs. 1, 10,000. The assessee's representative, in the course of the fresh assessment proceeding, stated that no vouchers, books or other evidence were available for production before the Income-tax Officer. During the course of the original assessment, the assessee had given a statement on July 4, 1978, to the effect that he did not remember having done any business during 1973-74. The assessee's auditor appeared before the Income-tax Officer and stated that no books, vouchers, purchase bills or connected records were available with him to support the claim of loss. On November 5, 1984, the assessee filed a return of income for the assessm....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ss. We should say that the question as to whether the assessee had carried on any business during the previous year ended on March 31, 1974, is largely a question of fact. The further aspect as to whether the assessee incurred any business loss and so his plea for set off of business loss against capital gains is tenable is also a question of fact. These pleas, affirmatively put forward by the assessee, should be proved by him. It should be based on material. Though sufficient opportunity was given to the assessee, the assessee did not substantiate the plea by producing any material. The Appellate Tribunal found that, in such circumstances, it cannot be said that the assessee carried on any business during the previous year relevant to t....