B.C.Basak, J. - (1.) In this application under Article 226 of the Constitution of India the petitioner is challenging the orders of the Tribunal dated 5th October, 1972, and 29th March, 1975, respectively. The facts of this case so far as they are relevant for the purpose of the decision herein are as follows:
(2.) The petitioner is a public limited company. The petitioner carries on business in iron and structural steel materials. According to the petitioner, the petitioner has been regularly carrying on business in iron and structural steel materials and also business of contract. Regarding the accounting period ended on the last day of Chaitra, 1370 B.S., corresponding to 13th April, 1964, relevant for the assessment year 1964-65, according to the petitioner It suffered a loss of Rs. 30,008 which was written off as bad debt against the income from business in iron goods and 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 of contracts was done in the previous year relevant for 1963-64 or subsequent years up to date. In the year under appeal, a sum of Rs. 30,008 was debited to the profit and loss account as loss on running account. The Income-tax Officer noted that this amount was a loss relating to the contract business which was closed down two years earlier. He disallowed the amount as being loss pertaining to a defunct business. The disallowance has been upheld by the Appellate Assistant Commissioner who found that the contract business done by the assessee was a separate business having no connection with or dependence on the business in iron and steel goods. No material has been brought by the assessee on record to show that the contract business and the business in hardware and structural steel were one and the same business. It is also on record that the contract business was not done from 1963-64 assessment year onwards. In these circumstances, the revenue authorities were justified in rejecting the claim that the sum of Rs. 30,008 being loss incurred in the contract business be allowed. The assessee's objection on this score stands rejected."
(3.) Thereafter, an application was made by the assessee before the Appellate Tribunal under section 254(2) praying for rectification of the mistake appearing in the order dated the 5th October, 1972. This application was made on the ground that the observation by the Tribunal in its order " that no material has been brought by the assessee on record to show that the contract business and the business in hardware and structural steel were one and the same business and that it was also on record that the contract business was not done from 1963-64 assessment years onwards " is not correct. It was stated that the learned member was wrong in recording the aforesaid. The allegation of the petitioner regarding the same as it would appear from the petition for rectification is as follows : " 2. On the date of hearing on 24th July, 1972, the authorised representative, Shri A.K. Mukherjee (and not Sri B. N. Mukherjee) appeared on behalf of your petitioner and contended before the learned member, Shri Harnam Shankar, that the Appellate Assistant Commissioner of Income-tax was wrong in holding that' the contract loss incurred by it was a separate business and it did not have any connection with or dependence on iron and steel goods and, therefore, 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, in fact, one and the same business under the control, power and management of the said company. It was also pointed out that the Income-tax Officer admitted in the earlier assessments that it was the same business and computed the income accordingly. In support of the statements made before the learned member, the authorised representative produced the profit and loss account and balance-sheet of the company, memorandum and articles of association, books of accounts and vouchers. That the learned authorised representative contended that since the contract business was continuing and there was no notice given to the Income-tax Officer for discontinuance of business, the loss during the said year should be allowed in computing the profit of the business. 3. That it appears that the learned member recorded in the order that ' no material has been brought by the assessee on record to show that the contract business and the business in hardware and structural steel were one and the same business. It is also on record that the contract business was not done for the assessment year 1963-64 onwards '. ;