MESSRS MOHAMMAD AKBAR MOHAMMAD AFZAL vs INCOME TAX APPELLATE

ORDER

1. ANWARUL HAQ, J.-The petitioner-firm functioning under the name and style of M/s. Mohammad Akbar Mohammad Afzal and dealing in fruit is aggrieved by the refusal of the Lahore High Court to require a reference under section 66(2) of the- Income-tax Act, 1922, for the assessment year 1959- 60.

2. The relevant facts are that in the return submitted by the firm for the year in question a sum of Rs.

3. 30,000 was shown as credit balance in the name of Mohammad Younis Kelawala, on account of the sale proceeds of goods sent by the said Mohammad Younis on behalf of his father to this Company. In elaboration of this statement it is stated by the learned counsel for the peti--tioner that Wilayat A.I, the , father of Muhammad Younis Kelawala, used to send bananas from Dacca to Lahore, and his son, Younis, used to export them to India, and that in this connection Wilayat A.I was even convicted for a violation of the Foreign Exchange Regulations. The question before the Income-- tax Officer was whether Mohammad Younis Kelawala was acting on behalf of the petitioner-firm and, therefore, the sum of Rs. 30,000 standing to his credit in the accounts of the Company in fact represented the income of the Company itself, or whether the said Mohammad Younis was acting on behalf of his father, Wilayat A.I, and therefore, this amount of money was nothing more than the sale proceeds of goods sent to the firm and sold by it on his behalf. The Income-tax Officer, after considering the material placed, before him, came to the conclusion that Mohammad Younis Kelawala was not acting on behalf of his father Wilayat A.I and that the sum in question in-fact represented the income of the assesses-firm.

4. Aggrieved by this decision of the Income-tax Officer, the petitioner took the matter in appeal to the Appellate Assistant Commissioner and then to the Appellate Tribunal, but the plea was rejected.

5. The High Court has taken the view that the question raised before it was patently a question of fact and therefore it could not interfere.

6. It is contended in support of the petition that there has been a material irregularity on the part of the Income-ax authorities inasmuch as they have failed to 'take account of the fact that Wilayat A.I, the father -of Mohammad Younis Kelawala, was carrying on business of smuggling fruit to India as is evidenced by his conviction under the Foreign Exchange Regulations. It appears to the learned counsel that this conviction of Wilayat All was sufficient, more or less by itself, to substantiate-the plea taken by the petitioner-firm that Mohammad Younis Kelawala had been acting in this matter on behalf of his father Wilayat A.I, and not on behalf of the petitioner-firm.

7. The contention has only to be stated to be repelled. No elaborate reasoning is needed to see that the question involved in this case is obviously a question of fact and, as such, not amenable to the jurisdiction of the High Court, under section 66(,2) of the income-tax Act. The petitioner's application was rightly rejected by the High Court. The present petition also fails and is hereby dismissed. --