LODHA, J. - (1.) TWO connected applications were made by the assessee under S. 256(2) of the INCOME TAX ACT, 1961 (hereinafter to be referred to as "the Act"), against the order dt. 30th Sept., 1975, by the Tribunal, Jaipur Bench, Jaipur, (hereinafter to be referred to as "the Tribunal"), whereby the learned Tribunal had refused an application made by the assessee under S. 256(1) of the Act requiring the Tribunal to state a case and refer the questions of law arising out of its appellate order dt. 23rd Aug., 1973 (marked Ex. 6 on the record) as also another application under S. 256(1) of the Act dt. 11th June, 1974, for making a reference arising out of the Tribunal's order dt. 25th March, 1974, refusing rectification of its appellate order. The questions which the assessee wants to get referred to this Court by this application, are as under: "(i) Whether, on the facts and in the circumstances of the case, the mistake sought to be rectified is apparent on the face of record and within the four corners of S. 154 of the Act? (ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in rejecting assessee's application under S. 154 particularly when the mistake sought to be rectified was patent, obvious and apparent on the face of the record ? and (iii) Whether,on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the mistake is not apparent on the face of the record ?"
(2.) THE application arising out of the appellate order of the Tribunal dt. 23rd Aug., 1973, was registered as D.B. IT Case No. 92 of 1976, and this application was also connected with it. Both the applications for making a reference, as already stated above, are directed against the same order of the Tribunal dt. 30th, Sept., 1975 and both were listed together for hearing. D.B. IT Case No. 92 of 1976, was heard and decided on 18th Oct., 1977. It was rejected. The decision in that case is reported in Jainarain Jeevraj vs. CIT (1977) 10 WLN 546. However, this application was not heard and arguments on this application were deferred, on request made by the learned counsel for the assessee, by the following order, - "Learned counsel for the petitioner submits that in the light of the judgment in Civil IT Case No. 92/76, he could press this application or not. He prays for ten days time. Put up for orders after ten days, as prayed." Since then, this case has remained pending and has come up for hearing today. In our opinion, both the applications were connected and it would have been much better if both of them had been disposed of together. Be that as it may. We shall now deal with the application in hand. The assessment year is 1964 -65. In the assessee's cash book, the ITO, at the time of assessment, discovered the following entry dt. 14th Sept., 1962 - "Encashment of fixed deposit of Rs. 36,000 which was obtained on 11th Sept., 1962 from the bank." The ITO made enquiries from the bank whether the assessee had encashed fixed deposit of Rs. 36,000 on that date but was informed by the bank that there was no such fixed deposit to the credit of the assessee nor Rs. 36,000 had been withdrawn from the bank by the assessee from any fixed deposit account. However, it was discovered that on 11th Sept., 1962, the assessee had deposited an amount of Rs. 36,000 with the bank for a period of one month. On being interrogated by the ITO, the assessee stated that the entry of 14th Sept., 1962, was a bogus one and had been erroneously made by his Muneem. Not satisfied with the explanation given by the assessee, the ITO included the sum of Rs. 36,000 in the assessment as income from undisclosed sources. However, on appeal by the assessee, the AAC accepted the assessee's explanation. The Department, thereupon, filed an appeal before the Tribunal. After hearing both the parties, the Tribunal sent for the account books of the assessee firm lying in the custody of the ITO and got them examined by the ITO to ascertain whether there was any debit entry in the assessee's cash book to counter balance the credit entry of Rs. 36,000 of 14th Sept., 1962, extracted above. The assessee remained absent at the time of examination of accounts. His representative, who was present at the time when the account books were ordered to be summoned, stated to the Tribunal that after examination of the account books, whatever finding is given by the Tribunal, would be binding on the assessee. After examination of the accounts of the assessee, the Tribunal came to the conclusion that the entry of Rs. 36,000 made in the cash book of the assessee firm on 14th Sept., 1962, was not a bogus entry as alleged by the assessee, but the amount was there in the hands of the assessee though its source was not disclosed. Hence the Tribunal allowed the appeal, set aside the AAC's order and restored that of the ITO. The assessee moved an application under s. 254 of the Act for rectification on the ground that there was a mistake apparent on the face of the record inasmuch as the Tribunal was not correct in holding that there was no debit entry in the assessee's cash book to counter balance the credit entry of Rs. 36,000 made on 14th Sept., 1962. The contention on behalf of the assessee was that the aforesaid entry of Rs. 36,000 was counter - balanced by two entries on debit side, namely, of Rs. 20,000 on 11th Jan., 1963, and of Rs. 16088.77 on 31st July 1963, withdrawn from the bank and shown in the cash book. However, the Tribunal rejected the assessee's application for rectification with the following observations, - "In our opinion, the request of the assessee, if conceded to, would require a total reexamination of the entire issue and rehearing. In rectification proceedings, we are afraid, this not permissible. The assessee was given a full opportunity by the Tribunal to present its view points and to point out the discrepancies which the learned Chartered Accountant is now pointing out before us. If this opportunity was not availed of, the assessee has to face the consequences thereof. The contentions of the learned Chartered Accountant may or may not be ultimately found true. But to determine their worth, it would be necessary to enter into a detailed examination of the facts once again. It would not be, in our opinion, correct in law to permit this through rectification application". Thereupon, the assessee made two applications to the Tribunal for referring the questions of law arising out of its appellate order as well as the order refusing rectification. Both the applications, as stated above, were rejected. Hence the assessee filed in this Court two applications under S. 256 (2) of the Act; the one arising out of the appellate order of the Tribunal has already been rejected. We are now concerned with this application pertaining to the matter of rectification.
(3.) LEARNED counsel for the petitioner urges that there was an error apparent on the face of the record inasmuch as the Tribunal had not considered the relevant entries of Rs. 20,000 and Rs. 16,088.77 of 11th Jan., 1963 and 31st July, 1963, respectively and, therefore, the case for rectification was made out. He has, therefore, argued that three questions submitted by the assessee in the application do arise out of the order of the Tribunal. In support of his contention, he has relied upon ITO & Anr. vs. ITAT & Anr. (1965) 58 ITR 634 (All) : TC8R.1344. On the other hand, Shri Lekh Raj Mehta, learned counsel for the Revenue, has urged that in fact the assessee, in the garb of an application for rectification, wants to re -argue the whole matter, which does not fall within the scope of an application for rectification. It is submitted that there is no mistake or error apparent on the face of the record so as to invoke the power of rectification under S. 254. He has further invited our attention to the finding given against the assessee by the Court in D.B. IT Case No. 92, of 1976, decided on 18th Oct., 1977, between the parties.;