TMI Blog1979 (9) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) of the Act requiring the Tribunal to state a case and refer the questions of law arising out of its appellate order dated August 23, 1973 (marked Ex. 6 on the record) as also another application under s. 256(1) of the Act dated June 11, 1974, for making a reference arising out of the Tribunal's order dated March 25, 1974, refusing rectification of its appellate order. The questions which the assessee wants to get referred to this court by this application are as under : " (i) Whether, on the facts and in the circumstances of the case, the mistake sought to be rectified is apparent on the face of the record and within the four corners of section 154 of the Act ? (ii) Whether, on the facts and in the circumstances of the case, the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion, both the applications were connected and it would have been much better if both of them had been disposed of together. Be that as it may, we shall now deal with the application in hand. The assessment year is 1964-65. In the assessee's cash book, the ITO, at the time of assessment, discovered the following entry dated September 14,1962 : " Encashment of fixed deposit of Rs. 36,000 which was obtained on September 11, 1962, from the bank. " The ITO made enquiries from the bank whether the assessee had encashed fixed deposit of Rs. 36,000 on that date, but was informed by the bank that there was no such fixed deposit to the credit of the assessee nor Rs. 36,000 had been withdrawn from the bank by the assessee from any fixed dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the hands of the assessee though its source was not disclosed. Hence, the Tribunal allowed the appeal, set aside the AAC's order and restored that of the ITO. The assessee moved an application under s. 254 of the Act for rectification on the ground that there was a mistake apparent on the face of the record inasmuch as the Tribunal was not correct in holding that there was no debit entry in the assessee's cash book to counter-balance the credit entry of Rs. 36,000 made on September 14, 1962. The contention on behalf of the assessee was that the aforesaid entry of Rs. 36,000 was counter-balanced by two entries on the debit side, namely, of Rs. 20,000 on January 11, 1963, and of Rs. 16,088.77 on July 31, 1963, withdrawn from the bank and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent on the face of the record inasmuch as the Tribunal had not considered the relevant entries of Rs. 20,000 and Rs. 16,088.77 of January 11, 1963, and July 31, 1963, respectively, and, therefore, the case for rectification was made out. He has, therefore, argued that the three questions submitted by the assessee in the application do arise out of the order of the Tribunal. In support of his contention, he has relied upon ITO v. Income-tax Appellate Tribunal [1965] 58 ITR 634 (All). On the other hand, Shri Lekh Raj Mehta, learned counsel for the revenue, has urged that in fact the assessee, in the garb of an application for rectification, wants to re-argue the whole matter which does not fall within the scope of an application for rectifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the source of the credit entry of Rs. 36,000 dated September 11, 1962, wherein it was mentioned that the said amount of Rs. 36,000 had been obtained from the bank on September 11, 1962. Before the ITO, the assessee stated that the entry was bogus, but, before the AAC, the assessee first took the stand that cash amounting to Rs. 36,000 with him on September 14, 1962, was available to support the entry of September 14, 1962, and having failed in that attempt, the assessee again reverted to his previous stand that the entry was bogus and in fact it had not affected the assessee's cash position from September 14, 1962, till the end of the accounting year, because even after ignoring the sum of Rs. 36,000, which remained credited in the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal." In our opinion, the above observations against the assessee have put the last nail on the coffin. However, there is yet another complete answer to the assessee's case. The finding of the Tribunal is that the assessee's stand that the entry of Rs. 36,000 dated September 14, 1962, is not bogus but he had Rs. 36,000 with it that day. This is a finding of fact, which cannot be challenged here. Then, it passes our comprehension how the subsequent entries of 1963 can explain the source of Rs. 36,000 credited on September 14, 1962. The Tribunal was thus justified in holding that there was no error apparent on the face of the record. After having carefully scrutinized the whole matter, we have come to the conclusion that no questio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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