S. 254(2) — The order pronounced at the conclusion of the hearing is an order of the Tribunal — It cannot be called a tentative order or a prima facie view — If there is mistake apparent on record, the order pronounced in the Court which is an oral order

In this case, a survey u/s.133A was conducted at the business
premises of the assessee (M. Vijayan). During the course of survey, certain
documents pertaining to income and investment were found. Sworn statements were
recorded from the assessee and his wife. On the basis of sworn statements
supplied during the course of the survey, the Assessing Officer inferred that
the income and investment shown in the name of the wife actually belonged to the
assessee and he therefore made the impugned addition in the hands of the
assessee on substantive basis and in thehands of the wife on protective basis.

Upon assessee’s appeal, the learned CIT (A) found that the
wife had independent sources of income. He also found that there is no finding
that the money was actually invested by the husband or that he enjoyed the
profits earned from the business and investment in the name of his wife. Hence,
he allowed the assessee’s appeal and deleted the addition in the hands of the
husband.

Upon further appeal by the Revenue, the Tribunal decided the
issue in favour of the assessee relying on the decision of the jurisdictional
High Court in the case of CIT v. S. Khader Khan Son, (300 ITR 157) (Mad.)
wherein it was held that the materials collected and the statements recorded
during the survey u/s.133A were not conclusive piece of evidence by itself. The
order was pronounced in the open Court as well as communicated orally to the
parties concerned.

The Judicial Member subsequently proposed to recall the order
on the ground of non-consideration of the judgment of the jurisdictional High
Court in the case of H. Shahul Hameed v. ACIT, (258 ITR 266) (Mad.). Difference
of opinion arose between the Members regarding refixing the matter for hearing
and also on merits of the issue and therefore the matter was referred to the
Third Member.

The order pronounced at the conclusion of the hearing is an
order of the Tribunal. It cannot be called a tentative order or a prima facie
view. In the present case, the order is pronounced as well as communicated
orally to the parties concerned and hence it is an order. De hors the facts of
the present case, if there is mistake apparent on record, the order pronounced
in the Court which is an oral order can be recalled to rectify such mistake.

In the present case, there was no search but only survey
u/s.133A. In the decision of S. Khader Khan Son (supra), the jurisdictional High
Court has distinguished the provisions of S. 132(4) with those of S. 133A and
held that the material collected and statements recorded during the survey
u/s.133A are not conclusive piece of evidence and that the same cannot be the
basis for making any addition. Therefore the judgment based upon which the
Judicial Member has proposed to recall the order is not applicable to the facts
of the case. Further, the fact that the Judicial Member had to devote nearly
twenty-five pages to point out the error and then to set it aside for
reconsideration, itself proves that the conclusion of the Judicial Member is the
result of a long drawn-out process of reasoning on points where there may
conceivably be two opinions and thus, there was no mistake apparent from record.

Further, instead of acting upon what had been conclusively
pronounced in the Court, the Judicial Member kept the matter pending with him
and expressed his opinion to reopen the case after three months as against the
long-standing convention of passing dissenting orders within fifteen days.
Therefore, the matter cannot be refixed for hearing on the ground that there is
a mistake apparent from record.