1990-VIL-528-DEL-DT

Equivalent Citation: [1990] 185 ITR 484, 84 CTR 203

DELHI HIGH COURT

Date: 16.04.1990

COMMISSIONER OF INCOME-TAX

Vs

G. SAGAR SURI AND SONS

BENCH

Judge(s)  : C. L. CHAUDHARY., B. N. KIRPAL 

JUDGMENT

The judgment of the court was delivered by

KIRPAL J.-This order will dispose of Income-tax Cases Nos. 27 and 28 of 1985.

In respect of the assessment year 1972-73, in the books of account of the respondent, there was a cash credit entry of Rs. 25,000 in the name of Delhi Automobiles (Pvt.) Ltd. on December 2, 1971. The Income-tax Officer did not accept the contention of the respondent that this amount was received in cash from Delhi Automobiles (Pvt.) Ltd., in support of which the assessee had relied on the entry in the books of account of its creditor which was made on December 11, 1971. The said sum of Rs. 25,000 was added as an unexplained cash credit in the hands of the respondent.

An appeal was filed, but the same was dismissed by the Appellate Assistant Commissioner. Thereafter, a second appeal was filed by the respondent. An order dated August 25, 1983, was passed in which it was stated that the explanation of the respondent was not satisfactory and the addition of Rs. 25,000 was confirmed. It appears that the respondent then moved a miscellaneous application to the effect that at the time of the hearing of the: appeal, the Tribunal had announced that the cash credit of Rs. 25,000 will be deleted and that, therefore, there was a mistake apparent on the face of the record and the order should be corrected. A notice was issued to the Department and the departmental representative submitted, as is evident from the Tribunal's order dated January 31, 1984, that the log book of the members may be consulted. After consulting the log books, the Tribunal passed an order dated January 31, 1984, in a miscellaneous application to the effect that the log books did indicate that a mistake had crept into the order. The Tribunal, accordingly recalled its earlier order relating to the cash credit of Rs. 25,000. By a separate order, disposing of the main appeal, the Tribunal reiterated that it had earlier announced that the cash credit of Rs. 25,000 would be deleted from the assessee's income. In this order the reason for this deletion was given and that was that "sometimes or rather many times discrepancies do occur in transactions between two business houses and the Revenue authorities were unnecessarily influenced by the fact that G. Sagar Suri being connected with both the firms had introduced his own money into the books". The Tribunal, accordingly, deleted the addition of Rs. 25,000.

Two reference applications had been filed by the Department asking for the following two questions to be referred to this court:

"1. Whether, on the facts and in the circumstances of the case, the .Income-tax Appellate Tribunal was correct in law in entertaining the miscellaneous application with regard to the issue of cash credit of Rs. 25000 in the name of Delhi Automobiles (P.) Ltd. which was finally confirmed in their order dated August 25, 1983, and the appeal on that point did not survive for further consideration ?

2. Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was correct in law in holding that the cash credit of Rs. 25,000 in the name of Delhi Automobiles (P.) Ltd. stood explained by ignoring their own earlier decision dated August 25, 1983, wherein it was held that the cash credit is not explained ?"

The Tribunal dismissed the aforesaid applications under section 256(1) and now applications under section 256(2) have been filed.

In our opinion, the Tribunal has recorded a finding of fact that when it had heard the appeal, it had announced the deletion of the addition of Rs. 25,000. The Tribunal has further stated that from their own log books it is evident that the contention of the assessee was correct and, therefore, the Tribunal recalled their earlier order. Once an announcement is made in the open court, then that is the order of the Tribunal and the order which is written subsequently merely contains the reason for it to come to the conclusion which it did.

In the present case, the written order was at variance from the result which was announced in the open court and this was clearly a mistake which had crept into the order of the Tribunal which it had rightly corrected. We do not see any mistake of law occurring in this.

It is further contended that, on merits, the Tribunal has ignored the material which had earlier persuaded it to disallow the contention of the assessee. Shri Misra submitted that the Tribunal ought to have noticed that whereas the credit entry in the books of the respondent was dated December 2, 1971, the corresponding entry in the books of Delhi Automobiles (Pvt.) Ltd. was only dated December 11, 1971. This discrepancy clearly shows that the two entries were not genuine.

The question whether the entry of December 2, 1971, can be regarded as genuine or not is essentially a question of fact. The Tribunal, in its order, was aware of the two dates on which entires were made, namely, December 2, 1971, in the books of the assessee and December 11, 1971, in the books of Delhi Automobiles (Pvt.) Ltd. The Tribunal has come to the conclusion that sometimes it happens that in the case of two business houses the entries do not tally. We find that this is a finding of fact and even if the finding be wrong, it is not possible for us to come to the conclusion that the said finding is perverse or not supported by any material on record.

The Tribunal has accepted the version of the assessee and the conclusion of the Tribunal does not involve any principle of law.

We, therefore, dismiss these applications. There will be no order as to costs.

 

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