JUDGMENT
[ENTITY] C.J. - Two connected applications were made by the assessee under [SECTION] of the [ACT] (hereinafter to be referred to as "the Act"), against the order dated September 30, 1975, by the Income-tax Appellate 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 [SECTION] of the Act requiring the Tribunal to state a case and refer the questions of law arising out of its appellate order dated August 23, 1973 (marked Ex. 6 on the record) as also another application under [SECTION] of the Act dated June 11, 1974, for making a reference arising out of the Tribunals order dated March 25, 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 :
"(i) Whether, on the facts and in the circumstances of the case, the mistake sought to be rectified is apparent on the fact of the record and within the four corners of [SECTION] of the Act ?
(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in rejecting the assessees application under [SECTION] particularly when the mistake sought to be rectified was patent, obvious and apparent on the face of the record?
(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the mistake is not apparent on the fact of the record ?"
The application arising out of the appellate order of the Tribunal dated August 23,1973, was registered as [CASE NUMBER] (See p. 353 supra) 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 dated September 30, 1975, and both were listed together for hearing. [CASE NUMBER] was heard and decided on October 18, 1977. It was rejected. The decision in that case is reported as [PRECEDENT], at page 546 [since reported in [PRECEDENT]]. 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 :
"Learned counsel for the petitioner submits that in the light of the judgment in [CASE NUMBER], he could press this application or not. He prays for ten days time.
Put up for orders after ten days, as prayed."
Since then this case has remained pending and has come up for hearing today. In our opinion, both the applications were connected and it would have been much better if both of them had been disposed of together. Be that as it may, we shall now deal with the application in hand.
The assessment year is 1964-65. In the assessees cash book, the ITO, at the time of assessment, discovered the following entry dated September 14, 1962 :
"Encashment of fixed deposit of Rs. 36,000 which was obtained on September 14, 1962, from the bank."
The ITO made enquiries from the bank whether the assessee held encashed fixed deposit of Rs. 36,000 on that date, but was informed by the bank that there was no such fixed deposit to the credit of the assessee nor Rs. 36,000 had been withdrawn from the bank by the assessee from any fixed deposit account. However, it was discovered that on September 11, 1962, the assessee had deposited an amount of Rs. 36,000 with the bank for a period of one month. On being interrogated by the ITO, the assessee stated that the entry of September 14, 1962, was a bogus one and had been erroneously made by his munim. Not satisfied with the explanation given by the assessee, the ITO included the sum of Rs. 36,000 in the assessment as income from undisclosed sources. However, on appeal by the assessee the AAC accepted the assessees explanation. The department thereupon filed an appeal before the Tribunal. After hearing both the parties, the Tribunal sent for the account books of the assessee-firm lying in the custody of the ITO and got them examined by the ITO to ascertain whether there was any debit entry in the assessees cash book to counter-balance the credit entry of Rs. 36,000 of September 14, 1962, extracted above. The assessee remained absent at the time of examination of accounts His representative, who was present at the time when the account books were ordered to be summoned, stated to the Tribunal that after examination of the account books, whatever finding is given by the Tribunal, would be binding on the assessee. After examination of the accounts of the assessee, the Tribunal came to the conclusion that the entry of Rs. 36,000 made in the cash book of the assessee-firm on September, 14, 1962, was not a bogus entry as alleged by the assessee, but the amount was there in the hands of the assessee though its source was not disclosed. Hence, the Tribunal allowed the appeal, set aside the AACs order and restored that the ITO. The assessee moved an application under [SECTION] of the Act for rectification on the ground that there was a mistake apparent on the face of the record inasmuch as the Tribunal was not correct in holding that there was no debit entry in the assessees cash book to counter-balance the credit entry of Rs. 36,000 made on September 14, 1962. The contention on behalf of the assessee was that the aforesaid entry of Rs. 36,000 was counter-balanced by two entries on the debit side, namely, of Rs 20,000 on January 11, 1963, and of Rs. 16,088.77 on July 31, 1963, withdrawn from the bank and shown in cash book. However, the Tribunal rejected the assessees application for rectification with the following observations :
"In our opinion, the request of the assessee, if conceded to, would require a total re-examination of the entire issue and a re-hearing. In rectification proceedings, we are afraid, this is not permissible. The assessee was given a full opportunity by the Tribunal to present its view-points and to point out the discrepancies which the learned chartered accountant is now pointing out before us. If this opportunity was not availed of, the assessee has to face the consequences thereof. The contentions of the learned chartered accountant may or may not be ultimately found to be true. But to determine their worth, it would be necessary to enter into a detailed examination of the facts once again. It would not be, in our opinion, correct in law to permit this though rectification application."
Thereupon, the assessee made two applications to the Tribunal for referring the questions of law arising out of its appellate order as well as the order refusing rectification. Both the applications, as stated above, were rejected. Hence, the assessee filed in this court two applications under [SECTION] of the Act. The one arising out of the appellate order of the Tribunal has already been rejected (See p. 353 supra). We are now concerned with this application pertaining to the matter of rectification.
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 January 11, 1963, and July 31, 1963, respectively, and, therefore, the case for rectification was made out. He has, therefore, argued that the three questions submitted by the assessee in the application to arise out of the order of the Tribunal. In support of his contention, he has relied upon [PRECEDENT]. On the other hands, Shri [ENTITY], learned counsel for the revenue, has urged that in fact the assessee, in the grab 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 [SECTION]. He has further invited our attention to the findings given against the assessee by this court in [CASE NUMBER], decided on October 18, 1977, between the parties (since reported in [CASE NUMBER] supra).
In [PRECEDENT], it was observed thus :
"Where, in a judgment or order of the Appellate Tribunal, an error has crept in, not as a result of any fault of the assessee, but attributable entirely to the Tribunal in having lost sight of a material fact at the time of writing its order or judgment, which fact was duly brought to its notice by the assessee, there would be an error apparent from the record which could be rectified under [SECTION] of the [ACT]."
We have gone through the facts of that case, and, in our opinion, it is completely distinguishable. That was a simple case where the prayer contained in the application for rectification was that the penalty ought to have been reduced in proportion to the difference between the income returned and the income assessee, as finally found by the Tribunal, but that was not done. There cannot be a clearer case of mistake or error apparent on the face of the record than this. In the present case, the Tribunal got the accounts of the assessee examined and came to the conclusion that the assessee had failed to explain the source of the credit entry of Rs. 36,000 dated September 11, 1962, wherein it was mentioned that the said amount of Rs. 36,000 had been obtained from the bank on September 11, 1962. Before the ITO, the assessee stated that the entry was bogus, but, before the AAC, the assessee first took the stand that cash amounting to Rs. 36,000 with him on September 14, 1962, was available to support the entry of September 14, 1962, and having failed in that attempt, the assessee again reverted to his previous stand that the entry was bogus and in fact it had not affected the assessees cash position from September 14, 1962, till the end of the accounting year, because even after ignoring the sum of Rs. 36,000, which remained credited in the assessees books of accounts there was sufficient cash available with the assessee for the purpose of defraying cash payments. (See Tribunals order at page 83 of the paper book). In this connection, we may also refer to the following observations made in [CASE NUMBER], decided on October 18, 1877 (since reported in [PRECEDENT] supra) :
In these facts and circumstances, it is difficult for us to accept the contention of the assessee that the Tribunal ignored or did not take into consideration the facts which is ought to have considered. On the contrary it was the duty of the assessee to bring all these facts to the knowledge of the Tribunal so that the Tribunal could enable itself to declare the entry of September 14, 1962, as bogus. But no such care was taken. It may also be mentioned here that in view of the stand taken in the beginning by the assessee that it tried to satisfy the entry of September 14, 1962, as genuine before the AAC, the burden lay very heavily on it to prove that it was really a bogus entry. At this stage, it is not open to the assessee-firm to say that the Tribunal did not take into consideration the entries of Rs. 20,000 and of Rs. 16,088.77, as counter balancing the entry of Rs. 36,000, because it was never explained to the Tribunal by anybody on behalf of the assessee in that manner. In these circumstances it is not open to the assessee now to assert that all the facts were not carefully taken into consideration by the Tribunal."
In our opinion, the above observations against the assessee have put the last nail on the coffin. However, there is yet another complete answer to the assessees case. The finding of the Tribunal is that the assessees stand that the entry of Rs. 36,000 dated September 14, 1962, is not bogus but he had Rs. 36,000 with it that day. This is a finding of fact, which cannot be challenged here. Then, it passes our comprehension how the subsequent entries of 1963 can explain the source of Rs. 36,000 credited on September 14, 1962. The Tribunal was thus justified in holding that there was no error apparent on the face of the record.
After having carefully scrutinized the whole matter, we have come to the conclusion that no question of law arises out of the Tribunals order even in respect of the matter of rectification as there is no error apparent on the face of the record. It appears that the assessee only wants to re-argue the case the take a further chance. This is not within the scope of an application for rectification.
The application is, therefore, dismissed. No order as to costs.