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TMI Blog1988 (2) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... t Commission. The ITO knew about his application moved before the Settlement Commission. The CIT (A) before him the applicant had first raised the objection threw out his plea on the ground of failure of the applicant to provide data respecting the years in respect of which his aforesaid application was moved. He had also thrown out the application for the reason the applicant had not produced any evidence for the admission of the application. The same issue had been raised vide grounds of appeal Nos. 4 and 5 before the Appellate Tribunal which the latter omitted to deal with the plea of the applicant found correct, we proceeded to hear the appeal on the ground of appeal Nos. 4 & 5. We heard the applicant and respondent on the issue. Having heard both sides, we are of the view that the applicant had not been able to establish his point that the ITO was not justified in proceeding with the assessment while the aforesaid application for settlement was pending. There is no statutory bar in our knowledge which disentitles the ITO from proceeding with a matter which is pending before a Settlement Commission. No doubt, the order of the Settlement Commissioner is final and conclusive orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from asstt. year 1972-73 onwards was the proprietor assessed the entire profit of the liquor business in his hands in these years. At the same time he reopened the assessment of the firm and assessed the profit of the liquor business by way of protective assessments in its hands withdrawing the benefit of registration he had allowed earlier. The applicant feeling aggrieved appealed to the CIT(A) and impugned the finding, inter alia, that the liquor business belonged to him and not to the partnership firm in which he was and also was held to be a partner all along. the CIT(A) turned down his plea and confirmed the finding of the ITO. The applicant having failed before the two lower authorities appealed before the Appellate Tribunal and raised the same plea. The Tribunal also turned down the plea of the applicant and confirmed the finding of the lower authorities. 4. The applicant impugns the finding of the Appellate Tribunal that when he had raised a specific plea regarding the correctness of the findings of lower authorities based on the content of the aforesaid Diary NO. 10, the Appellate Tribunal instead of looking into the diary and verifying from the entries therein the correc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal on behalf of the assessee during the hearing. We are not moved by the plea of the revenue that the counsel Mr. K. N. Jain cannot act as a witness. The counsel is not acting as a witness of an event which, had happened outside the court as was the case in the Patna High Court's judgment relied on by revenue, but is only affirming what had happened during the proceedings before the Tribunal. The Tribunal never objects to a counsel raising a plea in a miscellaneous application that a particular plea or argument raised by him had not been considered by the Tribunal. The Tribunal does not stop him from raising such a plea or argument raised by him had not been considered by the Tribunal. The Tribunal does not stop him from raising such a plea on the ground that he is acting as a witness. Therefore, we cannot rule out the affidavit of the counsel regarding what had happened and what had not happened during the hearing of the appeal. The counsel an advocate is merely referring to the procedure accepts at the time of hearing. Revenue having failed to file a counter affidavit of the then Departmental Representative who had caused appearance on behalf of revenue and also by declining to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal will be reviewing its order if it considered the error or took step to correct the error. There is no review involved nor any long and drawn out reasoning required to reach the finding that the diary was not produced. Even if we disregarded the affidavit, the absence of any conclusive finding about the content of the diary in the finding of the Tribunal will show the error as one apparent from record. 10. In our view the Tribunal being duty bound to correct an error apparent from record brought to its notice in the interest of justice, the order of the Tribunal has to be recalled for rehearing of the appeal. We order accordingly and direct the Registry to fix up the hearing within four weeks from the date of our order. 11. There remains another grievances pointed out in para (e) of the application. Since we are recalling the order there is no need to dispose of this grievance. 12. Application moved at the instance of the applicant-assessee is allowed in part. Per Shri B. Nath, Accountant Member - I have not been able to agree with the decision of my learned Brother on the issue raised in the misc. petition by the assessee that the decision of ITAT given earlier sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stand. It has been strongly argued on behalf of the revenue that ITAT has examined the 'diary' which is clear from the observations of ITAT at various places in its order. The department has also filed written arguments dated 9-8-1985, paras 9 to 15 of which are as under : "9. That the Departmental Representative normally carry the relevant seized papers in the court and it is clear from the judgments of the Commissioner of Appeals as well as of the Tribunal that the diary was examined by the Commissioner in appeal as well as by the Tribunal and the assessee also has filed chart of which reference has been made in page 8 of the Tribunal's order and the Department has also filed the chart and the Tribunal has recorded in page 6 is as follows : "The diary and the seized papers indicated that the assessee did not disclose truly and fully the income in case of the original assessment.' The Tribunal has recorded in page 9 to the following effect : The assessee's income is computed on the basis of the entry in the diary. The diary is not complete and it is not maintained on the double entry system of accountancy. The Income-tax Officer also proceeded on the same line on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holding that it is not maintainable either in law or on facts and to reject the same being also not bona fide; Or pass such other order or orders as your honour may deem fit and proper. And for this your petitioner shall ever pray." 3. Thus, it has been strongly argued on behalf of the department that the assessee is trying to create defence when prosecution has been launched against him and the miscellaneous petition has been filed for this purpose mainly. 4. Taking the totality of the facts into account, I hold that there is no evidence to come to a conclusion that the ITAT had not looked into the 'diary' at all not examined the contention of the assessee vis-a-vis the 'diary'. Shri Jain admitted in the course of arguments that the ITO and CIT (A) both had examined the said 'diary' but he stated that the ITAT did look into it. Now, I would consider the contention of the assessee from another angle. 5. Even if it is taken for the sake of argument only (without conceding that the ITAT did not actually examine it) that ITAT did not look into the 'diary; it is the discretion of the ITAT to look into the books of account itself and thereafter to give a decision on the issues raise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plea that Diary No. 10 was not produced before the Tribunal. Hence, the order of the Tribunal passed has to be recalled for re-hearing. The learned Accountant Member did not agree with the view of the learned Judicial Member. He held that the affidavit of Shri Jain has not to be considered and if that is ignored there is no other evidence to come to the conclusion that the said diary was not called for by the Tribunal. He further held that the Tribunal has no power of review. There is no mistake apparent from the record, hence the misc. petition has to be rejected. In view of the above difference of opinion the point stated in para 1 above is referred to me. 3. The learned counsel for the assessee strongly urged that Diary No. 10 was never produced before the Tribunal and the Tribunal never examined the same. Unless dairy is examined, it is not possible to hold that transactions therein relate to the business of the assessee in the individual capacity. Since, the Tribunal failed to consider the Diary No. 10, there is a mistake apparent. He also urged that he has filed an affidavit stating that diary was not produced before the Tribunal and it was not looked into. He submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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