9911796707
TMI Blog2011 (3) TMI 920X X X X Extracts X X X X X X X X Extracts X X X X ..... n the present case the revenue seems to have missed the distinction between a finding on a point of difference and the final order of the Tribunal under sec.254(1) - Decided against the revenue - ITA No. 4613/Mum/2005, - - - Dated:- 11-3-2011 - R.V. Easwar, J. Hemant Lal, CIT DR for the Appellant Dinesh Vyas for the Respondent ORDER 1. This application has been filed by the revenue u/s.254(2) of the Income Tax Act against the order of the Third Member dated 12th May 2010 passed on a difference of opinion between the two Members who originally heard the appeal filed by the assessee. The following points of difference were referred to me u/s.255(4) for being resolved:- "Whether on the facts and circumstances of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. Sub-section (2) provides that the Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1), and shall carry out such amendment if the mistake is brought to the notice by the assessee or the Assessing Officer. The order passed under sub-section (1) is the order of the Tribunal finally disposing of the appeal; and it is only such an order that can be amended under sub-section (2) as is clear from the words of the sub-section underlined by us for emphasis. An order passed by the Tribunal under subsection (1) is an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal for nominating a Third Member. The Third Member hears the parties on the point of difference and renders his decision. His decision creates the majority view, but it is not a final order disposing of the appeal because he is not seized of the other points in the appeal, if any, on which there was no difference of opinion between the Members who heard the appeal originally. Even if there were no other points in the appeal, still his order is not one finally disposing of the appeal. Sub-section (4) of section 255 requires that after the opinion of the Third Member, the point of difference "shall be decided" according to the majority opinion and this clearly suggests that a final order has to be passed disposing of the appeal in its en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the opinion of the third Member should go back to the Tribunal for final decision. The Tribunal, when finally disposing of the appeal, may, no doubt, allow other points to be raised before it, if they consider it proper..........The jurisdiction of the Third Member, it appears to us, is clearly defined in Section 5A(7) of the Indian Income Tax Act and he cannot, therefore, take it upon himself to decide the appeal by either dismissing or by allowing the same". (underlining mine) 6. In CIT v Pramilaben Chunibhai (1999) 239 ITR 36, a Division Bench of the Gujarat High Court put the matter beyond any doubt in the following words (page 40):- "It is, therefore, clear that the process of rendering a decision by the Tribunal is not com ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
