TMI Blog1998 (12) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case and in law the CIT(A) has erred in allowing assessee's claim of bad debts of Rs. 7,99,675 when the assessee had neither before the AO nor before the CIT(A) had furnished any details in respect of debtors i.e. their name, nature of transactions, etc. and as to how they had become bad.' While arguing the appeal, the Revenue's arguments were: 1. That the assessee had not been able to prove that the debts had become bad. 2. No details whatsoever were filed by the assessee regarding the names, and addresses of the debtors, the amounts outstanding the reasons for claiming the same as bad. 3. Whether the debt has become bad or not is a finding of fact and hence to come to this conclusion, the AO was required to have the details in his possession. 4. The assessee could not prove that he had filed the details of bad debts before the AO or before the CIT(A). On the basis of the above arguments, the Revenue's prayer was to at least set aside the assessment so that necessary investigation is carried out by the AO to come to the conclusion as to whether the debt had become bad or not which is a must for allowance of claim for bad debts. Here it is pertinent to mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m), Sarangpur Cotton Mfg. Co. Ltd. vs. CIT (1982) 31 CTR (Guj) 247 : (1983) 143 ITR 166 (Guj). Therefore, considering the entire circumstances of the case we find that the first appellate authority directing the AO to allow the deduction to the assessee. In our opinion the finding recorded by the first appellate authority is based on reasoning which requires no interference.' In the other words the Tribunal gave the relief because: 1. 138 debts were of very small amount. 2. New management took over the business which was not able to recover them. 3. Efforts were made by the assessee to recover the debts. 4. Debts were more than 3 years old. 5. Debtors were disputing the debt with regard to poor qualify of printing and rates. In this connection, it is submitted that the main reason for preferring appeal by the Revenue is that for coming to the conclusion that the assessee's contentions are correct or not, the AO must have been provided with the details required. Unless and until the AO was supplied with the required details, he would in no way have adjudged the veracity of the assessee's assertions. All the above assertions of the assessee were without any sort of evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the very decision of the Tribunal, it is requested that this erroneous order may be recalled so that this apparent mistake is rectified and the miscarriage of justice is prevented." 2. The assessee has filed a reply to the aforesaid application which can be summarised as follows: (a) The Tribunal has rightly rejected the appeal preferred by the Revenue. (b) Against the order passed by the Tribunal the CIT, Surat has not filed any application for reference under s. 256(1) of the Act. (c) The ITO (Judicial), Surat is not aware about filing of the present miscellaneous application before the Tribunal. (d) The Departmental Representative has no authority to file this miscellaneous application. (e) On merit after considering the materials on record, the first Appellate Authority and the Tribunal allowed the claim of the assessee. (f) The paper book did not contain any additional evidence which was duly certified by the assessee. On behalf of the assessee reliance was placed on the following decisions: (i) CIT vs. Sumah Tea Plywood Industries Ltd. (1997) 140 CTR (Cal) 454 : (1997) 226 ITR 34 (Cal); (ii) Asstt. CIT vs. Dr. Ved Prakash Anr. (1991) 122 CTR (AP) 362 : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed first. Admittedly, no reference application has been filed by the CIT against the order passed by the Tribunal under s. 256(1) of the Act. The present miscellaneous application has been filed by the learned Departmental Representative under s. 254 of the Act with a prayer to rectify or recall the order passed by the Tribunal. The provision of s. 254 is quoted below: "254: (1) The Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. (2) The Tribunal may at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-s. (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the AO: (3) The Tribunal shall send a copy of any orders passed under this section to the assessee and to the CIT." 5.1. The provision of s. 256 is as follows: "256(1): The assessee or the CIT may, within sixty days of the date upon which he is served with notice of an order under s. 254, by application in the prescribed form, accompanied where the application is made by the assessee by a f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entative is without jurisdiction and not maintainable. 5.2. On merit we find that the Tribunal considered the relevant facts available on record and came to a finding about the debt having become bad thereby approved the order passed by the CIT(A). The Tribunal also considered the fact that the claim of the assessee is covered by the amending provision of s. 36(1)(vii) r/w s. 36(2) of the Act which came into force w.e.f. 1st April, 1989. On perusal of the paper book filed by the assessee, we find that the same has been duly certified by the assessee. The assessee filed volume 2 of the paper book containing copies of decisions/orders passed by different High Courts and Tribunal which has not been certified. In our opinion, that cannot be considered to be ground for rectification of the order passed by the Tribunal. On perusal of the petition filed by the assessee, we find that learned Departmental Representative in fact has requested the Tribunal to review its earlier order which is not permitted under law. From the petition, we do not find that there was any mistake apparent from the record for the purpose of rectification of the order passed by the Tribunal. 5.3. Considering t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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