JAINARAIN JEEVRAJ Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(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:

(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, -

(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.