- (1.) HEARD the learned Counsel for the appellant.
(2.) THIS appeal is directed against the order passed by the Tribunal, Jodhpur Bench, Jodhpur in IT Appeal No. 455/2000. The appellant assessee was a consignment agent for supply of explosive goods to I.C.I. India Limited in Rajasthan. In view of the information received, a survey under Section 133A was carried out in the case of Pooja Roadlines, Udaipur and some bill books were impounded under Section 131 of the Act. On scrutiny of the bill books of M/s Pooja Roadlines, it was noticed that the vans (motor vehicles) owned by the assessee had been used for transportation of goods to various places. On examination, it was found that the assessee had entered into an agreement with M/s India Explosives Ltd. for supplying trading items of the principal company at Udaipur. The vans owned by the assessee were used for getting goods from Udaipur to Gomia in Bihar. The vans so used for delivering goods were to be unloaded at Udaipur and empty vans were to be sent to Bihar for obtaining the consignment. In short, the vans were not to be used for getting other goods while sending and bringing the goods from Gomia to Udaipur. The principal company bore the cost of the whole transportation expenses to and fro. Summons were issued under Section 131 to the partners of the assessee firm, namely Sh. Pradeep J. Mashru and Sh. Hari Lai T. Mashru. During the course of statement under Section 131, Sh. Harilal T. Mashru (managing partner) admitted that the assessee's vans were used for carrying goods to various places while sending it for bringing consignment goods. Another partner also admitted the said aspect. Not only that, both the partners also gave consent that they have no objection, if a sum of Rs. 5,98,440 was added in the total income declared for asst. yr. 1996 -97. The partners also admitted that the said amount has not been declared in the IT return filed for aforesaid assessment year. Accordingly, the aforesaid amount was added to the total income of the assessee. The appellant assessee thereafter challenged the said order before the CIT(A). The CIT(A) came to the conclusion that the partners were under undue pressure. The appellate authority also found that the said amount cannot be added in total declared income for asst. yr. 1996 -97. The said order was challenged by the Department by way of IT Appeal No. 455 of 2000. The two members of the Tribunal differed in the matter and therefore, the same was referred to the Third Member. The Third Member of the Tribunal, after considering the evidence on record, came to the conclusion that the confession made by the partners of the appellant firm was genuine one and the statements were not recorded under any duress. The third member ultimately found that out of five vehicles, the income relating to three vehicles which were not owned by the assessee, are not assessable in the hands of the assessee notwithstanding the fact that partners of the firm had agreed to pay tax in respect of such income. The third member also found that since the assessee is the owner of two vehicles only, the assessment should be restricted to said two vehicles. The third member accordingly came to the conclusion that the income relating to the three vehicles not owned by the assessee could not be assessed in the hands of the assessee. The third member in para 27 of his order has observed that 'there is no written agreement between the parties for leasing the vehicles'. The assessee preferred a rectification application on the ground that the said observation made in the order is not correctly recorded. The Tribunal allowed the said rectification application by omitting the sentence 'there is no written agreement between the parties for leasing the vehicles'. It was however, further observed that the said omission will not change the complexion of the decision.
(3.) THE appellant assessee has challenged the order of the Tribunal in the present appeal. The learned advocate Mr. Kothari appearing for the appellant submitted that in view of the rectification order, it is clear that there was lease agreement and therefore, the member of the Tribunal should have confirmed the deletion and should have allowed the appeal in toto. It is submitted that by rectification, the whole complexion of the order is changed.;