1987 (11) TMI 38

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....k as income of the assessee on the ground that it had failed to establish the genuineness of the cash credits in the name of Manubhai Shah. The orders passed by the Income-tax Officer in this behalf were upheld on appeal by the Commissioner of Income-tax and on further appeal to the Income-tax Appellate Tribunal, Nagpur by its order dated March 31, 1982. Subsequently, three applications were made by the assessee on January 20, 1983, for rectification under section 254(2) of the Act. The plea raised in these applications was that apart from arguing before the Tribunal at the time of hearing of the second appeal that the cash credits shown in the name of Manubhai Shah were genuine and were erroneously found not to be genuine by the authoritie....

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....had been filed by the attorney of the assessee who had appeared in the second appeal before the Tribunal, stating that the point that the amounts added back were excessive, was also argued. It has not been stated in the writ petition that any counter affidavit or affidavit in reply was filed on behalf of the Department asserting that the said point was never argued. In this view of the matter and the law laid down in this behalf by the Supreme Court in Mehta Parikh and Co. v. CIT [1956] 30 ITR 181, it has to be accepted that the point was argued, but was not considered by the Tribunal in its appellate order. That apart, we find that Shri P. I. Mohansingh, judicial Member, who decided the rectification applications along with another Account....