9911796707
TMI Blog2002 (11) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... of the records? 2. Whether, on the facts and circumstances of the case, the Appellate Tribunal was right in law in declining to remand the matter to the assessing authority affording an opportunity to the applicant to prove the source of income?" The brief facts necessary for the disposal of the tax case reference are as under: The assessee is the wife of a senior advocate practising in this court. There were three assessments made, one on the assessee's husband in his individual capacity, another in the name of the assessee's husband as karta of the joint family and the third on the assessee. The assessments were made consequent to a search in the residential premises of the assessee and her husband in the year 1986 and the question that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... divided fancily. The Appellate Tribunal also found that after nearly one month from the date of the search, the assessee gave a sworn statement accepting that she advanced the money out of her own money. The assessee also explained the sources for the amount; (i) out of her savings, and (ii) out of the money received from a firm in which she was a partner. The Appellate Tribunal considered all the three appeals together and took note of the fact that the extent of income shown by the joint family against the extent of the lands appeared to be disproportionate, and observed that the assessee did not give any details regarding the nature of crops that were raised. The Appellate Tribunal therefore held that in the absence of details, the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his individual capacity as well as the karta of the Hindu undivided family. Accordingly, the Appellate Tribunal disposed of all the appeals. The assessee thereafter filed a petition under section 254(2) of the Income-tax Act, 1961, for rectification of "the mistake apparent from the record" in the order of the Appellate Tribunal and to cancel the order passed by the Appellate Tribunal and to remand the matter back to the assessing authority for giving the petitioner an opportunity to show cause against the assessment of the amount as the undisclosed income of the petitioner or in the alternative, the petitioner should be given a sufficient opportunity before the Appellate Tribunal itself in that regard. The Appellate Tribunal held that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the materials at the time of disposal of the appeal. He also submitted that the assessee's husband is a leading senior advocate of this court and the Appellate Tribunal should have considered that it would have been fairly easy for him to give periodically a portion of his income to the assessee and, hence, the Appellate Tribunal should be directed to consider the petition on the merits. We are unable to accept the submission of learned counsel for the assessee. It must be remembered here that there were three assessments, one in the hands of the assessee, another in the hands of the assessee's husband in his individual capacity and the third in the hands of the Hindu undivided family. The Appellate Tribunal considered the question whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eover, the plea that the assessee's husband was periodically giving a portion of his income to the assessee was not advanced either before the Appellate Tribunal, nor any material was produced. The expression, "mistake apparent from the record" has been the subject matter of several decisions of the Supreme Court and it is well settled that for a "mistake apparent from the record" it must not involve a detailed inquiry and where more than one plausible view is possible, it cannot be regarded as a mistake apparent from the record. We are of the view that the finding of the Appellate Tribunal that the Hindu undivided family did not give details regarding the details or the nature of crops or the fact that the extent of income shown against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time of hearing of the appeal to assemble all available evidence and to produce the same, if the time was needed. The assessee had not done that, and it is not open to the assessee to complain in the rectification proceedings that the matter should be remitted. We therefore hold that the Appellate Tribunal was justified in holding that seeking an opportunity to be heard either by the Appellate Tribunal or to remit the matter to the lower authorities does not give rise to a mistake apparent from the record. It is not the case of the assessee that she sought an opportunity before the Appellate Tribunal at the time of hearing of the appeal to produce certain materials which was denied by the Appellate Tribunal. In the circumstances, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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