TMI Blog1996 (1) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... nt under section 131, in this behalf there is justification in law to use the evidence recorded behind the back of the applicant without affording an opportunity to him to cross-examine the said Mohd. Rashid and drawing an adverse inference. (2) Whether the assessment is vitiated in law as the Inspecting Assistant Commissioner (Assessment) has not given reasonable opportunity of being heard and failed in summoning the witnesses as requested under section 131 and his failure to consider the affidavit of Mohd. Rashid filed along with the written reply submitted on December 31, 1985 ? " The assessee is an individual and carries on business of purchase and sale of silver ornaments in the name of Anil Kumar Sheetal Kumar Nahata. A search wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the matter in detail, affirmed the order of the Commissioner of Income-tax (Appeals). Thereafter, an application was made for rectifying the order of the Tribunal dated January 11, 1988. The Tribunal, after examining the matter, declined the rectification. Then an application was made to the Tribunal for referring the matter to this court. Hence, the aforesaid reference has been made by the Tribunal before this court. Shri Shrivastava, learned counsel for the assessee, has submitted that the statement of Mohd. Rashid which was recorded behind the back of the assessee had been considered whereas the subsequent affidavit filed by Mohd. Rashid showing that he had sold this silver was not taken into consideration, and, therefore, the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the scope of rectification. In the case of T S. Balaram, ITO v. Volkart Brothers [1971] 82 ITR 50 (SC), their Lordships observed : " A mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long-drawn process of reasoning on points on which there may be conceivably two opinions. A decision on a debatable point of law is not a mistake apparent from the record. " In the present case, therefore, whether the Tribunal should have acted upon the statement of Mohd. Rashid or it should have acted upon the subsequent affidavit filed by Mohd. Rashid in favour of the assessee is not within the zone of apparent error on record but is a matter more of merits of the case and, there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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