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TMI Blog1984 (3) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Hon'ble High Courts and the Tribunal (where the Judicial Member and Dr. S. Narayanan, Accountant Member, were parties) decided the issue in favour of the revenue and thereby rejected the contention of the assessee that when the constitutional validity of the amendment of these sections is challenged in the Supreme Court by way of writs and the decision regarding it is pending there, then the matters are to be sent back and to be decided by the first appellate authority in accordance with the decision of the Supreme Court. There are several decisions of Benches of the Tribunal where the Judicial Member was a party and the Benches decided the issue against the assessee and in favour of the revenue on following the aforesaid decisions of the Hon'ble High Courts. However, there is a decision of ' A ' Bench of the Tribunal Madras in favour of the assessee in the case of Sundaram Fasteners Ltd. [IT Appeal Nos. 1608 and 1609 (Mad.) of 1982 dated 27-5-1983]. But the majority decision of the Tribunal and that of the High Courts are in favour of the revenue on the issue and, therefore, we follow the majority view. So we hold that there is no substance in this appeal of the assessee and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect, I may mention that the issue considered in the two cited High Court decisions was not the same. In both the cases, the ITO had computed the deduction under section 80J, read with rule 19A of the Income-tax Rules, 1962 (' the Rules '). The question in the case of K.N. Oil Industries (judgment dated 8-9-1981) was merely whether the assessee was entitled to relief under section 80J on the basis of the gross capital without deducting the value of the borrowed capital employed in the undertaking which the High Court answered in favour of the revenue, on the ground, inter alia, that section 80J has been amended with effect from 1-4-1972 by the Finance (No. 2) Act, 1980. In Traco Cable Co. Ltd.'s case also (dated 24-9-1981), the same question was considered and was answered in favour of the revenue for the same reason. Thus, these High Court decisions only considered the fact that section 80J has been amended by the Finance (No. 2) Act, 1980, retrospectively. The High Courts had, therefore, no occasion to consider the point which arises in the present appeal, viz., whether in view of the pending writ petitions in the Supreme Court challenging the retrospectivity of the amendment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ITO's disallowance of depreciation on the assets used for scientific research in respect of which deduction under section 35(2)(ia) had been allowed for the earlier year, as also the Commissioner (Appeals) direction thereon and restore the matter to the ITO for fresh decision on both the points after the decision of the Supreme Court or the Madras High Court is available. ORDER UNDER SECTION 255(4) OF THE INCOME-TAX ACT, 1961 --- Whereas we are unable to agree on the point set out below for the assessment year 1979-80, we refer the following point of difference of opinion to the President for reference to Third Member, under section 255(4) of the Act : " Whether, on the facts and in the circumstances of the case, the Tribunal would be justified in vacating the findings of the Commissioner (Appeals) and the Income-tax Officer regarding : (i) the computation of deduction under section 80J of the Income-tax Act, 1961, and (ii) the disallowance of depreciation on assets used for scientific research in respect whereof deduction under section 35(2)(ia) had been allowed for the earlier year and restoring the matter to the Income-tax Officer for fresh decision on both the points a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench should not criticise or refuse to follow the view expressed by another co-ordinate Bench. The matter, if referred to a larger Bench, the decision of the larger Bench would then be available to all the Members in the country. This is the convention that we have been following all along. That apart, the Madras High Court has not only approved of this practice, but even judicially laid it down as a guideline for the Tribunal in the case of CIT v. L.G. Ramamurthi [1977] 110 ITR 453 (Mad.). It may be necessary and apposite to quote from the headnote of that case : " No Tribunal of fact has any right or jurisdiction to come to a conclusion entirely contrary to the one reached by another Bench of the same Tribunal on the same facts. It may be that the members who constituted the Tribunal and decided on the earlier occasion were different from the members who decided the case on the present occasion. But what is relevant is not the personality of the officers presiding over the Tribunal or participating in the hearing but the Tribunal as an institution. If it is to be conceded that simply because of the change in the personnel of the officers who manned the Tribunal, it is open to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicata also may not be applicable to orders of the Tribunal. Even so, in our opinion, it is proper and desirable that when the Tribunal takes a particular view on the scope and effect of a statutory provision, it does not contradict itself and come to a diametrically opposite view later ; but in such a case, it follows the earlier view and, if and when the aggrieved party applies, should make a reference to this Court of the question." Following this healthy convention and the rule laid down by the Madras High Court quoted above, I must say that whatever may be the view of the learned Judicial Member on the correctness of the view expressed by the earlier Bench in the case of Sundaram Fasteners Ltd. it is expected that the earlier Bench's view be followed, and disagreement and more particularly criticisms are avoided. 4. The substance of the matter is whether the procedure of remitting the matter to the ITO to await the decision of the Supreme Court will be in the interest of justice and balance of convenience. The Gujarat High Court has held that the procedure followed by the Tribunal was quite correct when it merely remitted the matters after setting aside the orders of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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