TMI Blog1951 (8) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... become a bad debt many years prior to the year of assessment. Then there was an appeal to the Tribunal and the Tribunal held that the debt had become a bad debt on the 29th of September, 1941, when the judgment of the High Court was delivered. Now the assessment year which the Tribunal was considering was the year 1943-44 and the accounting year was Shake 1863-64 which corresponds to the 21st of October, 1941, to the 8th of November, 1942. The Tribunal erroneously took the view that the 29th of September, 1941, fell within the Shake year 1863-64 when obviously it did not. On that erroneous assumption the Tribunal allowed the appeal of the assessee and permitted him to include the bad debt in the assessment year 1942-43. The Commissioner then applied to the Tribunal for rectification of its order under Section 35 and the Tribunal acceded to the application of the Commissioner and rectified the order holding that as the 29th of September, 1941, did not fall within the accounting year, the assessee could not claim to include this bad debt in the assessment for the year 1942-43. On that view the Tribunal dismissed the appeal of the assessee. Then the assessee also applied to the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tify the same mistake at the instance of a party or when the attention of the Tribunal is drawn to its mistake by a party appearing before it. The power to rectify on its own motion is a larger power than the power to rectify on the application of a party. When a statute confers a power upon a Tribunal to make an order on the application of a party that is a limited power. The power is limited to rectification on an application being made by a party. If an application is not made even if the Tribunal realises its own mistake or finds out its own mistake it has no power to correct it. But when a statute confers a power upon a Tribunal to rectify a mistake suo motu that power is a wider power, a larger power, and can be exercised without an application being made by any party. Therefore, when the Tribunal exercises this power on the application of the Commissioner or at the instance of the Commissioner it is doing something which it can do on its own motion and in doing the same at the instance of the Commissioner, it is exercising a narrower power than the power conferred upon it by Section 35(2). Mr. Kola's grievance is that the notice served upon him under the proviso to sub-s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the error was that the Tribunal had to pass an order to the prejudice of the assessee. The result of the rectification was that the assessment was enhanced and because of that a notice had to be served upon the assessee which in fact was served. Our attention has been drawn to the judgment of the Madras High Court in O.Rm.M. Sm.Sv. Sevugan v. Commissioner of Income-tax, Madras [1948] 16 I.T.R. 59. In that case the Madras High Court was not considering at all what was the effect of the order under Section 35. It is true that they did say that Section 35 had a limited application and it does not enable an order to be reversed, revised, or reviewed, but permits only such error which is on the face of the record to be corrected. With respect that position in law is undisputable. But the real decision was that when an order is made under Section 35 it does not lend itself to a reference under Section 66(1). It was held that inasmuch as an order under Section 35 is not an order in revision or review of the original order under Section 33(4) no reference is competent under Section 66(1), because the order under Section 35 is a new order and not an order in revision or review under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in asking the Tribunal to come to a different conclusion on a consideration of this fact the assessee is really asking the Tribunal to revise or review their own decision and not rectify an apparent error on the face of the record. Therefore, in our opinion the Tribunal was equally right in refusing to rectify its order at the instance of the assessee. The final question which arises for our consideration is on the merits of the application, viz., whether the Tribunal was right under the circumstances of the case in holding that the bad debt was not a permissible deduction in the assessment year 1943-44. Now it was impossible for the assessee to realise this debt once a competent Court of the land held that the debt was not realisable. That was held in the first instance by the trial Court and that view was confirmed by this Court on the 29th of September, 1941. It is true that the judgment of the High Court was subject to appeal to the Privy Council. The position might have been different if an appeal in fact had been preferred to the Privy Council. It may then have been stated that the finality of the judgment of the High Court was affected by the fact that the judgment was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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