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47. These miscellaneous petitions by the assessees arise out of Wealth-tax Appeals Nos. 334 to 344/(PN) of 1985 in the case of Shri Modu Timblo and Wealth-tax Appeals Nos. 345 to 356/(PN) of 1985 in the case of Smt. Sushila M. Timblo. In accordance with Section 255(4) of the Income-tax Act, 1961, the following question has been referred to me as a Third Member for decision :

"Whether, on the facts-and in the circumstances of the case, the prayers made in the miscellaneous application of the assessees deserve to be accepted ?"

48. As identical issues have been referred in the cases mentioned above, a consolidated order, for the sake of convenience, is being passed. It is to be stated that whereas in the case of Shri Modu Timblo, the assessment years involved are 1970-71 to 1979-80, in the case of his wife, Smt. Sushila M. Timblo, apart from the abovementioned assessment years, the assessment year 1969-70 is also involved. However, the issue is identical for all the years in respect of both the assessees.

49. It is necessary to state briefly the background of the case to appreciate the point at issue. In essence, the dispute related to the assessability of foreign debts owed to the assessees to the extent of £11,50,750. These foreign debts owed to the assessees were stated to be with parties in Lisbon and elsewhere. The debts in question arose prior to liberation of Goa in 1961. The assessee had advanced money to a party in Portugal for supply of machinery. Before the machinery could be supplied, Goa was liberated by the Government of India in December, 1961. As the assessees were husband and wife governed by the concept of community of interest under the Portuguese Civil Code, it is accepted by both sides that the value of debts, if any, has to be equally included in their hands in the respective assessment years.

50. A common consolidated appellate order had been passed in the case of husband and wife for the assessment years 1970-71 to 1979-80 and a separate order has been passed in the case of wife, Smt. Sushila M. Timblo, for the assessment year 1969-70.

51. The assessee had pleaded before the Assessing Officer that the debts were frozen by the Government of Portugal; that there was no documentary evidence regarding debts and that on various valuation dates, the debt was time-barred. The assessees thus pleaded that the value of the debt was nil on the various valuation dates. The Assessing Officer, however, did not accept the contention of the assessees and included the value of foreign debts as the wealth of the assessees as on the valuation date. The Wealth-tax Officer, however, recognised the fact that the debts were frozen as a result of which, he stayed the recovery under Section 31(7) of the Wealth-tax Act. The Commissioner of Income-tax (Appeals) concurred with the Assessing Officer.

78. I have carefully gone through the dissenting order in the miscellaneous petition of the learned Judicial Member, wherein he has laid down three alternatives which are as follows :

(a) No finding has been given by the Tribunal ;

(b) The Tribunal has held that there were no restrictions ;

(c) The Tribunal has found that there were restrictions.

79. If the Tribunal has not given any finding on the issue, then its order would necessarily have to be recalled. If, on the other hand, the Tribunal has given a finding that there are no prohibitions or restrictions, then this finding is contrary to the evidence on record which was before the Tribunal at the time of hearing of the appeal and for this reason also, the order would have to be recalled. Thirdly, if the Tribunal has given a finding that there are restrictions on the repatriation, then also the order of the Tribunal reveals a mistake which requires a rectification, inasmuch as if there are restrictions, the value of the deposits could not be the face value and to this extent, the order of the Tribunal is directly contrary to the decision of the Gujarat High Court in CWT v. Shri Sadiqali Samsuddin [1985] 152 ITR 190. It is pertinent to mention that in W.T.A. No. 345/ PN/75 in the case of Smt. Sushila M. Timblo for the assessment year 1969-70, there were similar mistakes committed by the Hon'ble Bench.