- (1.) HEARD learned counsel for the parties.
(2.) IN this appeal, the petitioner challenges the order passed by the INcome-tax Appellate Tribunal, Jaipur Bench, Jaipur, on Miscellaneous Application No. 17/JP of 1999 made by the assessee in respect of a common judgment delivered in I. T. A. Nos. 2062 to 2066/JP of 1996 relating to the assessment years 1983-84 to 1987-88, The respondent-assessee is an independent assessee in the status of an "individual". He was also a partner in seven firms named in the impugned order. Amongst other issues the Tribunal held that the seven firms in which the respondent-assessee was a partner were benami for the assessee and the assessee to be the real owner of such firms. On this finding the income of all the seven firms for the five assessment years in question were clubbed with the income of the assessee as an individual. The appellate order of the Tribunal was passed on February 23, 1999. In recording the aforesaid findings, the Tribunal has primarily relied on a letter dated January 11, 1999, received from the Assessing Officer, through which it was informed that in the assessments relating to the firms, the firms were held to be not genuine but benami of the assessee and the income of the firms were accordingly clubbed in the hands of S. S. Gupta for the assessment years up to the assessment years 1983-84 to 1987-88, the firms have been assessed at nil income. In the course of arguments, during the hearing of the appeal the assessee has urged that the assessment of the firms were pending. However, in view of the aforesaid letter dated January 11, 1999, the Tribunal reached its conclusion that the firms have already been assessed at nil income and after considering all other facts of the case the Tribunal held that the finding of the assessing authority that the assessee, S. S. Gupta, is the real owner of all other firms and the firms are benami of S. S. Gupta was justified. After making of the order, the miscellaneous application was moved by the assessee bringing to the notice of the Tribunal that the hearing of the appeals was completed on January 7, 1999, and the letter dated January 11, 1999, which is after the appeals were heard, was never disclosed to the petitioner. It was contended by the petitioner during the course of hearing of the miscellaneous application that till date no assessment has been made in the case of the firm.
(3.) THEREFORE, according to the assessee, the Tribunal has relied on information contained in a document which came into existence after the hearing was completed without disclosing the same to the assessee and taking note of the same facts which did not exist, namely, about the completion of the assessment of the firms at nil. About these aspects of the matter the learned Departmental representative appearing before the Tribunal had agreed that the letter dated January 11, 1997, was received after the hearing was completed and that the letter was filed after the hearing was completed as per the requirement of the Tribunal but while furnishing the letter to the Tribunal a copy thereof was not furnished to counsel for the assessee and no opportunity was given to the assessee to explain the facts mentioned in the letter of the Assessing Officer. He also agreed that so far as the question of clubbing the income of the firms with the income of the assessee is concerned the same may be recalled and may be decided again after seeing the records. It is in the aforesaid facts and circumstances and rival submissions made by the respective representative of the assessee and the Revenue and the concession made by the Departmental representative that the Tribunal recalled its order on the point of clubbing and directed the appeals to be placed for hearing in due course. Learned counsel for the Revenue has urged that a substantial question of law arises in the present case whether in the facts and circumstances of the case the Income-tax Appellate Tribunal was justified in recalling its earlier order passed on February 23, 1999, by taking a different view on the same set of facts. ;