TMI Blog1979 (3) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... the contract business. Be that as it may, in the order of assessment under the heading " Loss on running job " the ITO found this loss related to the contract business which was closed down two years back and that actually no contract work was done during the year. According to the petitioner, this building construction work was not closed in the year. This contention was not accepted by the ITO. Accordingly, this sum of Rs. 30,008 was added back. Being aggrieved by the assessment order, the petitioner preferred an appeal before the AAC, Range-Z, Calcutta, who by his order dated 11th September, 1970, confirmed the said disallowance and the addition of Rs. 30,008 made by the respondent No. 4. Similar contention was made by the assessee before the AAC. There was a further appeal before the Income-tax Appellate Tribunal. The Tribunal by its order dated 5th October, 1972, dismissed the appeal subject to certain observations made regarding interest with which I am not concerned. The relevant portion of the order of the Tribunal is as follows : " The assessee-company deals in structural steel materials. In the preceding years, it was also doing business as a contractor. No business o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, the loss claimed in respect of the contract business cannot be allowed as a deduction against the profit from the business in iron and steel goods'. It was further contended before the learned member that the Appellate Assistant Commissioner was wrong in coming to his conclusion that ' the appellant did not carry on the contract business either in the assessment year 1963-64, or in the year under appeal '. The authorised representative before the learned member contended that the finding arrived at by the Appellate Assistant Commissioner of Income-tax was not correct and also not based on any material. It was pointed out before the learned member that the appellant-company did never close down its contract business. As the company did not procure the order from the different parties and Government, the company could not execute any fresh contract but the company was continuing with the contract business. The learned authorised representative also stated that the business of the appellant in iron and steel goods and the contract business were, infact, one and the same business under the control, power and management of the said company. It was also pointed out that the Income-t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the balance-sheet along with the statement of accounts of various jobs. It is noticed that all that these accounts show is that the assessee debited to its consolidated profit and loss account the following items under the head ' Loss on running job ' : Rs. Nilgunge Type II Special 5,479 I. G. New Mint Type III, Alipore 23,464 I. G. New Mint Type IV 612 Nilgunge Road and Paths 454 ----------------- 30,009 ----------------- The consolidated profit and loss account is credited with Rs. 7,105 which is described as profit on 64 sets of sub-inspectors' quarter. The individual balance-sheet and profit and loss accounts for these various running jobs did not show that any work whatsoever was done during the previous year. In Nilgunge Type II, there was brought forward an outstanding bill of Rs. 6,689 against which Rs. 1,210 were debited for amount received. The balance of Rs. 5,479 was debited to the profit and loss account as bad debts written off. Similarly, for I.G. New Mint Type IV, there was an outstanding bill brought forward from the preceding year amounting to Rs. 1,705, Rs. 1,093 were received during the previous year and the balance of Rs. 612 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r was for rectification of some mistake. The Tribunal has wrongly gone into the merits of the appeal and in effect has sought to rehear the appeal. The scope of the rectification application was limited but the order went beyond the scope of the same. What was done was to pass a fresh order merely to justify its own earlier order on merits. Mr. Roy Chowdhury also submitted that the Tribunal's first order in appeal was also wrong because it was not correct that there was no material before the Tribunal. The Tribunal has acted in error of law by ignoring and not considering the relevant materials. Mr. Sengupta, appearing on behalf of the respondents, has submitted that the order of the Tribunal on the rectification application was correct and there is no error of law apparent. It was for the Tribunal to come to the conclusion whether there was any mistake apparent from the record. The Tribunal found that there was no such mistake apparent from the record. The assessee itself invited decision on the merits and, as such, such decision has been arrived at. Mr. Sengupta has in any event submitted that from the order on the rectification application, a reference application under s. 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts only duty on such rectification application is to ascertain whether there was any mistake apparent from the record or not. In my opinion, in the present case, the Tribunal has fallen into the error in not considering such application for rectification within the scope of sub-s. (2) of s. 254, but it has merely reheard the appeal which it was not entitled to do. Regarding the contention raised by Mr. Sengupta that this court should not grant any relief against the same, in my opinion, it cannot be accepted. It is not necessary for me to decide whether an application for reference against an order passed on a rectification application is maintainable or not. Under the previous law, it is clear that no such application for reference was maintainable. If, under these circumstances, the petitioner has made this application in its writ jurisdiction, this court should not reject the same. In any view of the matter, the Tribunal acted without jurisdiction and had failed to exercise its jurisdiction. That being a question of jurisdiction, alternative remedy is no bar and this court may still in exercise of its discretion exercise its jurisdiction in entertaining a writ petition. Re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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