9911796707
TMI Blog1997 (6) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... court in V. V. Trans-Investments (P.) Ltd. v. CIT [1994] 207 ITR 508. The assessee carried the matter in further appeal before the Income-tax Appellate Tribunal, Hyderabad. The Tribunal, by an order dated November 26, 1996, disposed of the appeal by dismissing the same. Thereupon, the assessee has filed M. P. No. 106/Hyd of 1996, under section 254(2), of the Act, on December 6, 1996, before the Tribunal, raising grounds that the assessee's counsel never admitted that the issue was covered by the decision in V. V. Trans-Investments (P.) Ltd. v. CIT [1994] 207 ITR 508 (AP), and that learned counsel had relied upon several other decisions and that the decision of the jurisdictional High Court was distinguishable on the facts. Hence, there could not have been any concession on the part of the assessee's counsel, that the Tribunal had not referred to the submissions of the assessee's counsel nor discussed the decisions cited by him. Thus, there was a patent mistake in the Tribunal's order, in so far as there was not only a mistake in the statement of facts but also omission to consider the evidence filed before it in support of the submissions of the assessee, the decisions cited and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for hearing and the parties were heard. During the course of hearing, the parties have fairly agreed that the issue in question is squarely covered by the decision of the jurisdictional High Court in the case of V. V. Trans-Investments (P.) Ltd. v. CIT [1994] 207 ITR 508 (AP). 3. We have considered the submissions of the parties, gone through the records and find that the issue in question is squarely covered by the decision of the jurisdictional High Court mentioned above, which is in favour of the Revenue and against the assessee. Therefore, the finding of the Commissioner of Income-tax (Appeals), is in order and does not require any interference. 4. In the result, the appeal is dismissed." It is true, as contended, that it was stated in the order that the parties had agreed that the issue in question was squarely covered by the decision in V. V. Trans-Investments' case, [1994] 207 ITR 508 (AP). But it should be pointed out that the appeal was not disposed of on the basis of the concession of counsel. It was clearly stated in para 3 that the Tribunal had gone through the record and found that the issue was covered by the above decision. In that view, since the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of fact, essentially to be decided by the learned members, who had disposed of the appeal. After such a disposal was made in the impugned order and the same being purely a question of fact, the scope of this writ petition becomes very limited. For the reasons stated above, we do not see any ground to interfere with the impugned order. In fact we do not appreciate any counsel to canvass the truthfulness of a statement made in a judgment or order. There is authority for the proposition that the statement of the judge as to what happened in a court was conclusive and cannot be allowed to be controverted by any affidavit or otherwise. In Reg v. Pestonji Dinshaw 10 Bom HCR 75, it was observed as follows : "The statement of the judge, who presides at a trial, whether it be in a criminal or civil case, is, as to what has taken place at the trial conclusive. Neither the affidavits of bystanders, nor of jurors, nor the notes of counsel, nor of shorthand writers are admissible to controvert the notes or statement of the judge." Again, in Nagabhushanam v. Jagannaikulu, AIR 1925 Mad 1031, it was held that : "Where a judgment contains a damaging statement against a party, a stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when there is any controversy between the parties the statement made by the judge should be accepted as final and conclusive." However, exceptions to the rule laid down in Reg v. Pestonji Dinshaw, 10 Bom HCR 75, were mentioned in the above case in Timmalapalli Virabhadra Rao v. Sokalchand Chunilal, AIR 1951 Mad 796 as follows : "(10) It is however easy to visualise situations to which the rule laid down in the Bombay case Reg v. Pestonji Dinshaw 10 Bom HCR 75, would have no application. One would be where there is an enquiry into an accusation of misconduct against a judicial officer in relation to a particular case. Another would be where there is in reality no controversy at all between the parties and it is apparent from the affidavits of the advocates on both sides that the learned judge fell into an accidental error." A Constitutional Bench of the Supreme Court of five judges in Union of India v. T. R. Varma [1957-58] 13 FJR 237 ; AIR 1957 SC 882, authoritatively held that in a dispute as to what has happened before a court or Tribunal, the statement of the Presiding Officer is generally taken to be correct. Learned judge Venkatarama Aiyar J., delivering the judgment, ob ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
