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TMI Blog2005 (12) TMI 364X X X X Extracts X X X X X X X X Extracts X X X X ..... re heard by the West Zonal Bench of the Tribunal at Mumbai and two opinions were expressed by the Members of the Bench who heard the appeals - while the Member (Technical) held that the appeals were required to be rejected, the Vice-President held that the appeals were required to be allowed. Due to the difference of opinion, the following question was formulated and placed before the Hon ble President of the Tribunal for reference to third Member for resolving the difference :- Whether the appeals are required to be rejected as held by Member (Technical) OR whether the appeals are required to be allowed as held by Vice-President. 2. Pursuant to the above, the Hon ble President referred the matter to third Member. The hearing schedul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n clearly enumerated as required under the Section. They cited the following decisions in support of their contention that only the point of difference or points of difference can be referred to a third Member and not the entire case :- (1) AIR 1933 Allahabad 861 (2) 1953 (23) ITR 505 (Patna) (3) 1999 (240) ITR 189 (Kar.) (4) AIR 1958 M.P. 380 (5) AIR 1992 Allahabad 151 (6) AIR 1993 Del. 316, and (7) 2004 (174) E.L.T. 213 5. Learned Senior Counsel for the applicants submits that third Member can only decide the point or points which has or have been referred to him, but has no power either to formulate a new point or to re-decide a particular point, or to direct the Members of the original Bench t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the present case it is to be noted that a clear finding has been recorded on every issue arising for determination in the appeals (of which the present applicant was one of the appellants), in paragraph 25 of the order recorded by Member (Technical). He has held that - (a) the goods have been overvalued; (b) therefore, they are liable to confiscation under Section 113(d) of the Customs Act; (c) as a consequence thereof, penalties on all the appellants are required to be upheld; (d) FOB value is required to be redetermined; and (e) DEPB credit is required to be consequently reduced. On each of these issues, the Vice-President has expressed a diametrically opposite view. Therefore, the difference as framed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T was of the opinion that the Income-tax Officer was right in applying proviso to Section 13 of the Income-tax Act and adding a sum of Rs. 12,800/- to the income of the assessee as disclosed by the books, while the Accountant Member was of the opinion that an addition of Rs. 2,800/- would more than adequately cover the requirements of the case. This is how the case was referred to the President of the Tribunal :- As there is a difference of opinion between us on the only contention in this appeal, we hereby refer the appeal to the President under Section 5A(7) of the Income-tax Act. (Emphasis supplied). The President heard the appeal, but however directed an amount of Rs. 8,143/- to be added to the assessee s income as disclosed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The presiding Judge held that the objection was maintainable and also decided the case on merits whereas the other Judge held that the objection was not maintainable and consequently there was no occasion for him to decide the case on merits. After pronouncement of the judgments, the following order was passed by the Bench :- In view of the difference of opinion between us, we direct that the papers be laid before the Hon ble Chief Justice who may designate a third Judge to hear the matter. The objection raised before the third Judge was that the Judges had not stated the point upon which they have differed and as such the reference was not in accordance with law, in the light of the judgment of the Allahabad High Court in Birendra Ku ..... X X X X Extracts X X X X X X X X Extracts X X X X
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