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TMI Blog2015 (5) TMI 511X X X X Extracts X X X X X X X X Extracts X X X X ..... arty can seek appropriate remedy against the same. That situation will come only when the majority view is implemented and a formal order is passed on the appeal. However, just because one of the parties before us has a grievance with the majority view, notwithstanding the merits of such grievance, even if any, we must not delay the judicial process of giving effect to the majority view. The majority view in these appeals is that the learned CIT(A) was correct in confirming the impugned penalties of ₹ 54,82,239 and ₹ 34,90,015 in the case of Jupiter Corporation Services Ltd for the assessment year 1995-96 and 1996-97 and of ₹ 9,17, 680 in the case of Smt Sulochana V Gupta for the assessment year 1996-97. We, accordingly, confirm the same. - Respectfully following the same and rejecting the objections raised by the learned counsel for the assessee, we hold that the majority view is that CIT(A) was not justified in deleting the penalties, imposed on the assessee under section 271(1)(c) of the Income Tax Act, 1961, of ₹ 46,64,350 for the assessment year 1995-96, ₹ 2,88,42,796 for the assessment year 1996-97 and of ₹ 34,78,593 for the assessment yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disinclination to accept his request for adjournment, he made elaborate submissions on why the third member effect, even on merits, cannot given in this case at this stage. It is submitted that it is a fit case in which even the third member effect proceedings should be referred to a special bench of three or members since the learned Third Member, in his opinion, has disregarded the division bench orders. Our attention is invited to a recent judgment of the Hon ble jurisdictional High Court, in the case of CIT Vs Vallabhdas Vithaldas [(2015) 56 taxmann.com 300 (Guj)] wherein it is held that the decisions of the division benches must bind the single member benches. Learned counsel then points out that a third member decision cannot be equated with a special bench decision of three members, which may not be fettered by the division bench rulings, and, therefore, learned Third Member was clearly in error in disregarding the earlier division benches, directly on the issue, in favour of the assessee. In case learned Third Member had any doubts on the correctness of the division bench decisions, according to the learned counsel, all he could have done was to refer the matter for consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the learned Commissioner (DR), but the learned Third Member, in a very erudite and detailed order, has given specific reasons as to why these decisions donot hold good in the present case. Learned Commissioner (DR) submits that as to whether or not the reasoning of the Third Member is correct is something to be adjudicated by Hon ble Courts above, and that we should not even sit in judgment over the same. He submits that this Tribunal is not the end of the road so far as this litigation is concerned, and in case the assessee is aggrieved of what has been decided by the majority in this case, it is certainly open to him to challenge the decision before the higher forums. He submits that the two out of three Members have already given their views in favour of the stand of the Assessing Officer and all that we are required to do at this stage is to give effect to the majority views. 6. We have heard the rival submissions, perused the material on record and duly considered facts of the case in the light of the applicable legal position. 7. As Shri Hemani rightly points out, the legal position as it exists now, post Vallabhdas Vithaldas decision (supra) by Hon ble jurisdictiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es itself also have conflicting views on the issues on which members of the division benches differ or when majority view is not possible as a result of a single member bench, such as in a situation in which one of the dissenting members has not stated his views on an aspect which is crucial and on which the other member has expressed his views, it is possible to constitute third member benches of more than one members. That precisely could be the reason as to why even while nominating the Third Member under section 255(4), Hon ble President of this Tribunal has the power of referring the case for hearing on such point or points (of difference) by one or more of the other members of the Appellate Tribunal . Viewed from this perspective, and as held by Hon ble jurisdictional High Court, the Third Member is bound by the decisions rendered by the benches of greater strength. That is the legal position so far as at least the jurisdiction of Hon ble Gujarat High Court is concerned post Vallabhdas Vithaldas (supra) decision, but, even as we hold so, we are alive to the fact that Hon ble Delhi High Court had, in the case of P C Puri Vs CIT [(1985) 151 ITR 584 (Del)], expressed a contrary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... still have to deal with the issue, as was raised by the learned Commissioner (DR), as to whether at the stage of giving effect to the majority views under section 255(4), the division bench can take up any other issues, other than the simply implementing the majority views on the basis of the views already expressed by the division bench members and the third member, irrespective of relevance of such issues, even if any, to the appeal. We find that in the case of B T Patil Sons Belgaum Constructions Pvt Ltd Vs ACIT (ITA Nos, 1408 and 1409/PN/2003; order dated 28th February 2013), a coordinate bench of this Tribunal was in seisin of a situation in which by the time the division bench was called upon to give effect to the three member third member bench decision {reported as B T Patil Sons Belgaum Constructions Pvt Ltd Vs ACIT [1 ITR (Tribunal) 703]}, the division bench also had the benefit of guidance from Hon ble jurisdictional High Court on that issue, and the assessee did obtain a directions from the Hon ble High Court to take into account, inter alia, this judicial development as well. In the course of so giving effect to the majority views, the coordinate bench, inter alia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore us is whether the Tribunal while complying with the provisions of section 255(4) of the Act can consider the judgment of the Hon'ble High Court in the case of ABG Heavy Industries. In light of the clear directions given by the Hon'ble Bombay High Court in the appeals filed by the assessee for the impugned assessment years inter alia directed the Tribunal to consider the said decision of ABG Heavy Industries and all other decisions, we can consider the said judgments of ABG Heavy Industries and also the other judgments for allowing the deduction u/s. 80IA(4) of the Act while giving effect to the opinion of the Third Member as per the provisions of section 255(4) of the Act. Following the directions of the Hon'ble Bombay High Court being the Jurisdictional High Court, the Tribunal is bound to follow the directions and we do accordingly. 10. It was thus a case in which specific directions were issued by the Hon ble High Court to take into account the subsequent judicial developments by way of adjudication on the issue in appeal by Hon ble Courts above. The division bench has, taking note of these directions and indicating their limitations in the light of these di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the majority view, the aggrieved party can seek appropriate remedy against the same. That situation will come only when the majority view is implemented and a formal order is passed on the appeal. However, just because one of the parties before us has a grievance with the majority view, notwithstanding the merits of such grievance, even if any, we must not delay the judicial process of giving effect to the majority view. The majority view in these appeals is that the learned CIT(A) was correct in confirming the impugned penalties of ₹ 54,82,239 and ₹ 34,90,015 in the case of Jupiter Corporation Services Ltd for the assessment year 1995-96 and 1996-97 and of ₹ 9,17, 680 in the case of Smt Sulochana V Gupta for the assessment year 1996-97. We, accordingly, confirm the same. 4. We see no reasons to take any other view of the matter than the view so taken by us. Respectfully following the same and rejecting the objections raised by the learned counsel for the assessee, we hold that the majority view is that CIT(A) was not justified in deleting the penalties, imposed on the assessee under section 271(1)(c) of the Income Tax Act, 1961, of ₹ 46,64,350 for th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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