ORDER
A.M. Sapre, J.
1. The decision rendered in this appeal shall govern disposal of other appeal being IT Appeal No. 84 of 2004, because both these appeals arise between the same parties, i.e., filed by the same assessee.
2. This is an appeal filed by the assessee under Section 260A of the IT Act against an order dt. 17th Sept., 2003, passed by Tribunal (ITAT) in ITA No. 276/Ind/1998 in relation to asst. yr. 1991-92.
3. In short, the question that arises for consideration in this appeal is, whether this appeal involves any substantial question of law as is required to be made out under Section 260A of the Act that being the pre-requisite for admission of appeal.
4. Heard Shri H.C. Sarda, learned Counsel for the appellant.
5. Having heard learned Counsel for the parties and having perused the record of the case, we find no substantial question of law arises out of the impugned order passed by the Tribunal.
6. In substance, the question arose before the AO in respect of certain additions as an unexplained investment. The AO called upon the assessee to explain the investment but, despite explanation, the same did not find favour of AO. Resultantly, AO added the same in the income of assessee. This was upheld by CIT(A) and later by Tribunal, as appeals filed by assessee were dismissed by both the appellate authorities. The assessee has, therefore, come up in appeal (14 of 2004) before this Court. So far as other appeal (IT Appeal No. 84 of 2004) is concerned, the same arises out of an order passed by Tribunal in this very case rejecting assessee's application under Section 254 of the Act for rectification made after the dismissal of appeal by impugned order. This is how these two appeals are filed by the assessee-one against the main order and the other against the rejection of rectification application arising out of the main order by the Tribunal.
7. It cannot be disputed that a particular addition/deletion when made is a question of fact and depending upon the explanation offered by assessee under Section 68 of the Act, the AO and/or CIT(A) and lastly, by Tribunal as a last Court of appeal so far as facts are concerned may accept the same. Once the explanation offered by the assessee is accepted by the authorities for deleting the unexplained investment, then little remains for the High Court while hearing appeal under Section 260A arising out of such order to decide. It is for the reason that it does not involve any question of law but only involves question of fact. A finding of fact recorded by the Tribunal cannot be made subject-matter of judicial debate in an appeal filed under Section 260A ibid by the appellant. It is only when the issue sought to be raised relates to interpretation of some sections, or rule or circular or when the finding of fact is so perverse that no judicial man can ever reach to such conclusion or that when the finding of fact is totally de hors the subject and against the very record of the case, the High Court may consider it proper to interfere in an appeal filed under Section 260A ibid. Such does not appear to be a case of this nature and hence, we cannot interfere in finding of fact.
8. In the present case, the taxing authorities which included AO (as an original assessing authority), CIT(A) as a first appellate authority and lastly, Tribunal (as a last Court of appeal so far as facts are concerned), did go into the factual explanation offered by the assessee and turned down the explanation being not satisfactory. This resulted in addition in the gross total income of the assessee as an income from undisclosed source. It is legally permissible under the IT Act (s. 68/s. 69). Such issue as observed supra, does not involve any question of jurisdiction, entitling this Court to invoke its jurisdiction conferred under Section 260A of the Act. It being a settled principle of law that in order to entertain the appeal under Section 260A ibid, there must be a substantial question of law arising out of the Tribunal's order. It is only then, this Court can entertain the appeal, else not. We have not been able to notice any such question.
9. One of the submissions of learned Counsel for the appellant (assessee) was that when counsel appearing for assessee-Shri Anand Soni-filed an affidavit dt. 22nd Jan., 2004 (Annex. A-8 of IT Appeal No. 84 of 2004) before the Tribunal stating therein that during hearing before the Tribunal 'an understanding was given by the Hon'ble Members of Tribunal' that case shall be remanded to AO and hence, the impugned order dismissing the appeal is bad being contrary to the understanding given to counsel. In other words, the submission was that when learned Members of Tribunal gave an understanding to decide the appeal in a particular manner by remanding the case to AO to Mr. Anand Soni who claimed to be the counsel for assessee before the Tribunal, the impugned order could not have been passed which resulted in dismissal of appeal.
10. The submission of learned Counsel for the appellant in placing reliance on such affidavit and pressing such submission deserves to be deprecated and rejected at the outset. Indeed, it is highly objectionable and against the ethics of advocacy and judicial norms. In our opinion, it may tantamount to committing contempt entitling the Court to initiate proceedings against the concerned lawyer who filed such an affidavit.
11. In the first place, it is not the job of a lawyer to file any affidavit in any case-he being not a party to a case. Secondly, it is only when the Court/Tribunal directs by judicial order a counsel to file an affidavit, the same may be done in compliance to the orders of the Tribunal/Court. Thirdly, Mr. Anand Soni did not appear to have argued the case for assessee but one Mr. Sarda appeared and argued the appeal (see impugned order). Fourthly, there can never be what is described as 'understanding' inter se counsel addressing the Court and the presiding Judge in relation to case. Fifthly, the duty of a counsel is to only argue his case to the best of his ability, judicial acumen and integrity and equally the duty of Court (presiding Judge) is to decide the case on the basis of facts emerging from the record of the case and legal position applicable to the case as presented by a lawyer to the best of his ability and acumen. What may have transpired by way of exchange of words during arguments can never be taken as decision of Court but what is ultimately decided by the Court and is written in the order signed by the presiding Judge that matters for judicial scrutiny by a higher Courts.
12. We, therefore, out rightly reject such false affidavit filed by Anand Soni filed on 22nd Jan., 2004 (Annex. A-8) before Tribunal hoping in future that such occurrence shall not be repeated at the instance of any counsel in the larger interest by this pious profession and in the temple of justice.
13. In view of aforesaid discussion, the appeal is found to be entirely devoid of merit and hence, it is dismissed in limine. So far as other appeal is concerned, it arises out of an order passed on rectification application. In our opinion, the Tribunal has rightly rejected the rectification application holding that it does not constitute any error on face (of the record) as is sought to be urged by assessee. No question of law thus arises in this appeal too. It is therefore, also dismissed in limine.
14. In our opinion, this is a fit case where we consider it proper to invoke our powers conferred under Section 35A of CPC and impose a compensatory cost of Rs. 5,000 on the assessee. Let this cost be deposited in the Tribunal by assessee within one month. On such deposit being made, the same shall go to Department as per rules. In case, if the amount is not deposited, the AO shall initiate proceedings for recovery as per IT Rules against the assessee.