JUDGMENT - Chagla, C.J.

[1] The joint family, of which the assessee was at out time a member, had advanced certain loans to the Warad family. On partition of that joint family, the debts due to the family came to the share of the assessee. A suit was filed by the assessee for recovery of those debts against the Warad estate, but the suit was dismissed by the trial Court. There was an appeal to this Court, but this Court dismissed the appeal on 29-9-1941. The question that arose for consideration by the income-tax authorities was as to when these loans advanced by the family to the Warad estate became a bad debt. The Income-tax Officer held that the loans were not advanced in the course of the pint family business and therefore the claim of the assesses to deduct this amount as a bad debt was disallowed. The Appellate Assistant Commissioner on appeal held that the debt had become a bad debt many years prior to the year of assessment. Then there was an appeal to the Tribunal, and the Tribunal held that the debt had become a bad debt on 29-9-1941, when the judgment of the High Court was delivered. Now the assessment year which the Tribunal was considering was the year 1943-44 and the accounting year was Shake 1863- 64 which corresponds to 21-10-1941, to 8-11-1942. The Tribunal erroneously took the view that 29-9- 1941, fell within the Shake year 1863-64 when obviously it did not. On that erroneous assumption, the Tribunal allowed the appeal of the assesses and permitted him to include the bad debt in the assessment year 1942 43. The Commissioner then applied to the Tribunal for rectification of its order under Section 85 and the Tribunal acceded to the application of the Commissioner and rectified the order, holding that as 29-9-1941 did not fall within the accounting year, the assessee could not claim to include the bad debt in the assessment for the year 1942-43. On that view the Tribunal dismissed the appeal of the assessee, Then the assessee also applied to the Tribunal under Section 35, his grievance being that alter the judgment of the High Court he had applied to the High Court for leave to appeal to the Privy Council on 6-1-1919, and on his petition a rule was granted by the High Court on 7-1-1942. This rule was not prosecuted and nothing further happened to the petition filed by the assessee, According to the assessee the fact of this application for leave to appeal to the Privy Council was before the Tribunal and this fact appeared on the record, but the Tribunal did not take this fact into consideration. As a matter of fact, the Tribunal states in the statement of the case that this fact was not brought to its notice at all. The application of the assessee was that the Tribunal should rectify its order by taking into consideration this particular fact and then giving its judgment as to when the debt became a bad debt in light of the fact that the petition for leave to appeal to the Privy Council was made by the assessee on 5-1-1942. The Tribunal rejected the application of the assessee. It is on these facts that three questions have been referred to us by the Tribunal.

[2] The first question is with regard to the power of the Tribunal to rectify under Section 35. Mr. Kolahs contention is that what the Tribunal has done is tantamount to exercising a power of review or revision and not a power of rectification. He says that the Tribunal had at first allowed the appeal of the assessee and then purporting to act under Section 35 it has dismissed that appeal. According to him this is exercising the power of review or revision which is not conferred upon the Tribunal. It is also contended by Mr. Kolah that the power of rectification can only be exercised by the Tribunal on its own motion. The Tribunal cannot exercise the power of rectification at the instance of the Commissioner. Now, when we turn to Section 35 (2), the power of rectification which is conferred upon the Tribunal is the same as the power which is conferred upo

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