Judgment

P. N. BHAGWATI, J. - These appeals by special leave are directed against and order passed by the High Court declining to make a reference under S. 66, sub-s. (2) of the Indian Income-tax, Act, 1922. The assessee who is the appellant before us applied to the High Court after rejection of his application by the Tribunal that certain questions of law stated to arise out of the order of the Tribunal may be referred to the High Court. The questions of law which were said to arise out of the order of the Tribunal related to the inclusion of interest on two fixed deposit receipts of Rs. one lakh each which stood in the name of the wife of Mathura Prasad, the Karta and manager of the H.U.F. of the assessee. The revenue authorities came to the conclusion that though these fixed deposit receipts stood in the name of the wife of Mathura Prasad, they represented the assets of the assessee and hence the income from the fixed deposit receipts should have been included in the returns of the assessee for the assessment years 1955-56 to 1958-59, but the assessee had concealed this income and not shown it in its returns and thus rendered itself liable to penalty under S. 28 (1) -(C) of the Act. The I.T.O. accordingly imposed penalty on the assessee for each of the assessment years 1955-56 to 1958-59 and the orders imposing penalty were confirmed by the Appellate Asstt. Commissioner in appeal and of further appeal, they were confirmed by a consolidated order made by the Tribunal. The assessee claimed that question of law arose out of the order of the Tribunal and wanted them to be referred to the High Court. But the Tribunal took the view that no questions of law arose out of its order and so did the High Court and hence the reference was refused. The question is whether the view taken by the High Court that the order of the Tribunal did not give rise to any question of law is correct.

2. It is now settled law that the proceedings under S. 28 (1) (C) of the Act being quasi-criminal in character, the burden is on the department to establish that the assessee concealed the particulars of his income or deliberately furnished inaccurate particulars thereof and in the circumstances, it is not enough for the revenue merely to show that a certain amount was received by the assessee but it has to go further and prove that it constituted the income of the assessee. Clearly, therefore, in the present case, the onus was on the revenue to show that the income from the two fixed deposit receipts during the assessment years 1955-56 to 1958-59 was the income of the assessee. It is clear from the order of the Appellate Assistant Commissioner confirmed by the tribunal that there was sufficient material before the revenue authorities on the basis of which this onus could be said to have been discharged by the revenue. The order of the I. T. O. for the assessment year 1957-58 shows that one of the two fixed deposit receipts of Rs. one lakh was shown as an asset in the balance-sheet of the assessee. And it is evident from the order of the Appellate Assistant Commissioner that the amounts of both fixed deposit receipts were actually included by the assessee in its wealth-tax returns as the assets of the assessee. Moreover, it was admitted on behalf of the assessee that the amounts of both fixed deposit receipts at one time belonged to the assessee and there was absolutely no material produced on behalf of the assessee to show that these two amounts had at any time been gifted by the assessee to the wife of Mathura Prasad and in any event no such gift could be validly made by the assessee to the wife of one of the coparceners without the consent of the other coparceners. It also appears from the order of the Appellate Asstt. Commissioner that the amounts of the two fixed deposit receipts were subsequently taken back by Mathura Prasad, the manager and karta of the assessee, to meet the share of the firm of M/s. Agarwala Oil Mills and these two amounts were thus