9911796707
TMI Blog2014 (11) TMI 891X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the Tribunal to constitute the Special Bench and that too in the interest of the Revenue - the President does have the power to constitute a Special Bench but at what point and how is this power to be exercised is a debatable question - Prima facie this power cannot be exercised, when a Division Bench is siezed of the appeal and the Revenue has been seeking time before it. The practice of the President entertaining and acting upon letters of CBDT and the Vice President entertaining the Counsel ( likely to appear for Revenue) exparte in respect of an appeal already siezed of by a Division Bench of the Tribunal to be wanting in propriety - the recommendations made by the Vice President are not in consonance with the recommendations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P.M. Jagtap A.M. 3 M.V. Vasudevan J.M. To hear and decide the entire appeal. Sd/-5.3.13 . 4. The bare facts necessary for consideration at this stage are as follows:- The petitioner had filed its Return of Income for the assessment year 2008-2009 declaring a loss of ₹ 19.91 crores. The Assessing Officer passed an assessment order under Section 143(3) of the Act determining the petitioner's income at ₹ 272.65 crores. Being aggrieved, the petitioner carried the matter in appeal to the CIT(A). This appeal was dismissed by the CIT(A). Thereafter the petitioner filed a second appeal to the Tribunal. On 25 January 2012, a Division ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Special Bench. After examining the file, if both of you are of the view that it requires hearing on this preliminary issue, the same may be posted on any convenient date and then the views of the Bench may be forwarded to the Hon'ble president to enable him to consider as to whether it is a fit case for constituting Special Bench in exercise of the powers vested under section 255(3) of the Income Tax Act, 1961. This may be treated as urgent. Consequent to the above communication, the Division Bench of Tribunal, siezed of the petitioner's appeal, heard the parties on the issue of constituting a Special Bench of the Tribunal to hear the petitioner's appeal. 5. The Tribunal by its order dated 19th December 2012 held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with all papers including the original appeal file relevant for the purpose of constitution of Special Bench under Section 255(3) of the Act. The President on the above basis made the endorsement reproduced herein above and constituted a Special Bench to hear the petitioner's appeal at Hyderabad by members who were not stationed in Hyderabad. This was in terms contrary to the suggestion in the order dated 19 December 2012, of the Division Bench at Hyderabad. 7. Prima facie looking at the manner in which the entire proceeding has been conducted for the purposes of the constitution of the Special Bench of the Tribunal appears to have been unfair to the petitioner. In the petitioner's appeal which was siezed of by the Division Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing disputes between the parties. We also find this practice of the President entertaining and acting upon letters of CBDT and the Vice President entertaining the Counsel ( likely to appear for Revenue) exparte in respect of an appeal already siezed of by a Division Bench of the Tribunal to be wanting in propriety. This application could well have been made to the Division Bench which could then make a reference to the President for constitution of the Special Bench. In any case, even if the CBDT, who is a party to the proceedings were to approach the Vice President in respect of a pending proceeding, the same should have been done only after notice to the other side. Similarly, in case the President wanted to act upon the letter dated 15 N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the constitution of the Special Bench. The President in these facts is prima facie obliged to give some reasons indicating why he is constituting the Special Bench of Tribunal. The respondents submit that the Division Bench of the Tribunal had heard the petitioner but what they failed to notice is that decision is taken by the President of the Tribunal who has considered/heard only one side i.e. the letter dated 15 November 2012 of CBDT. Moreover, the Division Bench who considered/heard both sides does not decide the issue. It is axiomatic in law that one who hears must decide. It was next submitted by Mr. Rana, that when an administrative order is passed accepting suggestions made then no separate reason is required to be given in supp ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
