D.M. Chandrashekhar, J. - (1.) AT the instance of the assessee, the Income-tax Appellate Tribunal, Allahabad Bench (shortly called "the Tribunal"), has referred to this court under Section 256 of the Income-tax Act, 1961 (shortly called " the Act"), the following questions of law : "1. Whether, in coming to the conclusion that the assessee has failed to prove the source of cash credits standing in the name of Daya Shanker and Sundera Devi, the Tribunal has considered the evidence of Daya Shanker and Sundera Devi recorded by the Appellate Assistant Commissioner, if not, whether the appellate order is vitiated because of non-consideration of that evidence ? 2. Whether, in the circumstances of the case, the evidence of Daya Shanker and Sundera Devi, if recorded by the Appellate Assistant Commissioner, could be ignored from consideration on the ground that the Income-tax Officer had not been given an opportunity to rebut that evidence ?"
(2.) SHRI Mahajan, the learned counsel for the assessee, contended that the Tribunal in coming to the conclusion that the assessee had failed to prove the source of the cash credits standing in the names of Daya Shanker and Sundera Devi had not considered their evidence before the Appellate Assistant Commissioner and that hence the order of the Tribunal was vitiated by non-consideration of such evidence. On the other hand, the learned standing counsel for the income-tax department submitted that the statements alleged to have been made by Daya Shanker and Sundera Devi before the Appellate Assistant Commissioner were not available in the record of the appeal before him, that it was not established that those two persons had been examined by him and that at any rate the Tribunal had considered their statements before reaching the conclusion that the assessee had failed to prove the sources of cash credit standing in their names. In para. 6 of the statement of the case the Tribunal has said : "On these facts, we are of opinion that statements of Shri Daya Shanker and Smt. Sundera Devi were recorded by the Appellate Assistant Commissioner, but they were not made available by the department to the Appellate Tribunal in the course of the hearing of the appeal.", On behalf of the revenue, an application has been made in this case praying that the above passage should be deleted from the statement of the case by the Tribunal since the same constituted a fresh finding by the Tribunal. It is alleged in that application that when the Tribunal heard and decided the appeal it did not say in its order that the statements of Daya Shanker and Sundera Devi were recorded by the Appellate Assistant Commissioner. In para. 3 of its appellate order the Tribunal has said : "With regard to Sundera Devi the Appellate Assistant Commissioner clearly states that she appeared before him but the Appellate Assistant Commissioner has not given the statement as made by Sundera Devi or the statement made by Daya Shanker assuming that Daya Shanker also appeared before the Appellate Assistant Commissioner......"
(3.) FROM the aforesaid passage it is clear that the Tribunal proceeded on the basis that Sundera Devi had appeared before the Appellate Assistant Com missioner and given her statement. In its appellate order the Tribunal has not said positively that Daya Shanker did not appear before the Appellate Assistant Commissioner and make any statement. On the other hand, the Tribunal proceeded on the basis that Daya Shanker had also made the statement before the Appellate Assistant Commissioner. Hence, it is too late in the day for the revenue to contend that the Tribunal's statement of the case contains a new finding that the Appellate Assistant Commissioner recorded the statements of Daya Shanker and Sundera Devi. However, it is not necessary for us to go into the question whether the statements of Sundera Devi and Daya Shanker were recorded by the Appellate Assistant Commissioner separately or were merely incorporated in his order. Whether the statements of those two persons were separately recorded or were merely incorporated in the order of the Appellate Assistant Commissioner, it does not admit of any doubt that the Tribunal should have considered in its appellate order the statements of these two persons. In para. 3 of its appellate order the Tribunal has observed : "It appears also that the Appellate Assistant Commissioner had before him the statement made before the Income-tax Officer by Daya Shanker and Sundera Devi and one is at a loss to know why the Appellate Assistant Commissioner examined these two persons again when the matter was under appeal before him and that too without giving any opportunity to the Income-tax Officer to rebut the statements as made by the said two parties." ;