JUDGMENT
B.N. Kirpal, J.
1. The petitioner seeks reference of the following question of law to this court :
“Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in accepting the assessed’s miscellaneous application in respect of its earlier order dated January 5, 1983 in Income-tax Application No. 2039/Delhi of 1981 when such order was conclusive on the issue involved, and to refer the same to the President for decision and thereby reopening the question of taxability of Rs. 5,200 which has already been concluded by the order dated January 5, 1983 ?”
2. The question arose with regard to the applicability of section 13(2)(a) of the Income-tax Act. The Judicial Member held that the assessed was not entitled to exemption from tax with regard to taxability of interest of Rs. 5,200 which it received because the loan had been granted without adequate security. The Accountant Member passed a separate order and with regard to this question he observed that “the interest income involved being small, I have no comments to add.” There was one other question which was involved in this case and there was a clear difference of opinion between the two members and the same was referred to a third Member under section 255(4) of the Income-tax Act.
3. The assessed then filed a miscellaneous application contending that there was a mistake apparent on the face of the order as the Accountant Member ought to have given a decision on the application of his own mind with regard to the aforesaid amount of Rs. 5,200. This application was considered and the Tribunal, including the Accountant Member, came to the conclusion that here was an error apparent on the face of the order and the Accountant Member then proceeded to deal with this issue on merits and came to a conclusion different from that of the Judicial Member. This question was also then referred to the third Member.
4. The Revenue filed an application under section 256(1) seeking reference of the aforesaid question on the ground that the miscellaneous application ought not to have been allowed by the Tribunal. The Tribunal dismissed the petition under section 256(1) by coming to the conclusion that there was an error apparent on the face of the order and no referable question of law arose.
5. It is against the aforesaid decision that the present petition under section 256(2) has been filed. In our opinion, there is no merit in this petition. The initial order of the Accountant Member leaves no manner of doubt that, though he had written an order separate from that of the Judicial Member, he did not deal with the merits of the question involved. He did not differ from the Judicial Member only because the amount involved was only Rs. 5,200. The first order of the Accountant Member did not categorically state that he agreed with the conclusion of the Judicial Member and in fact by stating that because the amount involved is only Rs. 5,200 he had no comments to add, clearly implied that he had not considered the issue involved on merits. When the assessed brought this to the notice of the Tribunal, the Tribunal rightly came to the conclusion that there was an error of law because the Accountant Member had to consider the issue raised on merits. Whether there is an error apparent on the face of the order of not is a question of fact and we agree with the Tribunal that no question of law arises. Dismissed.
6. Petition dismissed.