COMMISSIONER OF INCOME TAX Vs. VASANTBEN H. SHETH

JUDGEMENT

(1.) The present reference, at the instance of the Revenue, has been made by the learned Tribunal, referring the following substantial question of law arising out of the order of the learned Tribunal Dt. 14th Sept., 1998 in Misc. Appln. No. 87/Ahd/1996, for the opinion of this Court:

(2.) That being aggrieved by and dissatisfied with the order passed by the CIT(A) deleting the aforesaid amount of Rs. 3,33,413, the Revenue preferred an appeal before the learned Tribunal being Appeal No. 4895/Ahd/1991. The learned Tribunal passed a common order disposing of the appeals of the assessee against the original order of CIT(A) (ITA No. 2344/Ahd/1988) as well as the appeal of the Revenue against the second order of the CIT(A) Dt. 10th July. 1991 (ITA No. 4895/Ahd/1991). That while passing the judgment and order Dt. 10th July, 1991, the learned Tribunal came to the finding that the seized diary belongs to the assessee and the entries therein relate to his business. The learned Tribunal rejected the contentions of the assessee that the diary belongs to his son Shri Bharatkumar. That on appreciation of evidence and considering the material on record, the learned Tribunal recorded a finding that the diary was recovered from the assessee and not from the room of his son, and therefore, the presumption contained under s. 132(4) of the Act has been rightly drawn by the AO against the assessee, and consequently, the learned Tribunal restored the order passed by the AO making addition of Rs. 3,33,413 on the basis of the seized diary.

(3.) It appears that thereafter, the assessee moved a miscellaneous application being MA No. 34 of 1995 pointing out that the observations of the learned Tribunal regarding ownership of the diary by the assessee in paras 8 and 9 of its order does not take into consideration the submissions made by the assessee. The learned Tribunal vide its order Dt. 11th April, 1996, dismissed the application by observing that the attempt on the part of the assessee is to get the review of the order of the learned Tribunal, is beyond the scope of s. 254(2) of the Act. At this stage, it is required to be noted that the original order passed by the learned Tribunal in respective appeals Dt. 6th June, 1995 and the order in Misc. Appeal No. 34 of 1995 were passed by the same Bench consisting of Mr. B.L. Chhibber, AM and Shri Phool Singh, JM. It appears that thereafter the assessee moved the second miscellaneous application pointing out the similar mistake in the order of the learned Tribunal. That by impugned order dated the 14th Sept., 1998, the learned Tribunal (Bench consisting of different Members), allowed the said miscellaneous application and recalled the order Dt. 6th June, 1995 passed by the learned Tribunal in ITA Nos. 2344 of 1988 and 4895/Ahd/1991.