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TMI Blog2002 (7) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... ing binding nature of orders of the Tribunal on lower authorities and instead dismissing the appeal on the basis of the grounds which were raised 'without prejudice' to the grounds regarding preliminary issue? - (iii) Whether, on the facts and in the circumstances of the case, the Tribunal was right in reviewing its own decision in the case of Arihant Builders, Developers and Investors Pvt. Ltd. particularly when a reference arising out of the said order was already pending before the court? And whether the Tribunal is right in relying upon the decision in the case of Distributors (Baroda) Pvt. Ltd. v. Union of India? - IT Ref. No. 43 of 1997 - - - Dated:- 11-7-2002 - Judge(s) : DEEPAK VERMA., N. K. JAIN. JUDGMENT The judgment of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India [1985] 155 ITR 120 (SC)? (iv) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the notice under section 143(2) could be issued even after grant of refund under section 143(1)(a)(ii) and the words 'without prejudice to the provisions to sub-section (2)' appearing in clause (i) of the said section can be read into clause (ii)? (v) Whether, on the facts and in the circumstances of the case, the Tribunal has misinterpreted and misapplied the judgment of the Madhya Pradesh High Court in the case of Kamal Textiles v. ITO [1991] 189 ITR 339, for interpreting the provisions of sub-clause (ii) of section 143(1)(a) of the Income-tax Act?" The matter pertains to the assessment year 1989-9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come-tax (Appeals) was bound by the decision of the Tribunal in the case of Arihant. The Tribunal, however, dismissed the appeal and upheld the view taken by the Commissioner of Income-tax (Appeals). As regards the binding force of its own earlier judgment in the case of Arihant, the Tribunal observed: "21. In view of the reasons discussed above, we feel that the view adopted by the Commissioner of Income-tax (Appeals) is correct and hence we need not follow the view adopted by this very Bench in the case of Arihant Builders. It would be of place to mention here that once the Supreme Court was also placed in a similar situation. While dealing with the case of Distributors (Baroda) P. Ltd. v. Union of India [1985] 155 ITR 120 (SC), the cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri R.L. Jain, learned counsel for the respondent-Department. Questions Nos. 1 to 3 are interrelated and if they are answered in favour of the applicant-assessee, then it would not be necessary for us to consider the remaining questions Nos. 4 and 5, In fact, this reference involves the much larger question of judicial propriety and discipline. The Tribunal is created under section 252 of the Income-tax Act, consisting of as many judicial and accountant members as may be appointed by the Central Government. One such judicial member of the Tribunal is normally appointed as the President thereof. Any assessee aggrieved by the orders passed by the authorities as enumerated under clauses (a) to (c) of sub-section (1) of section 253 may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not followed, the result will only be undue harassment to assessees and chaos in administration of tax laws." Obviously, the Commissioner of Income-tax (Appeals) not only committed judicial impropriety but also erred in law in refusing to follow the order of the Appellate Tribunal. Even where he may have some reservations about the correctness of the decision of the Tribunal, he had to follow the order. He could and should have left it to the Department to take the matter in further appeal to the Tribunal and get the mistake, if any, rectified. The learned Members of the Tribunal who decided the appeal upholding the view taken by the Commissioner of Income-tax (Appeals) also did not observe the due procedure as laid down by various jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gujarat High Court in Sayaji Iron and Engineering Co. v. CIT [2002] 253 ITR 749, dealing with an almost similar situation laid down guidelines for resolution of such controversy as follows: "(ii) That the Tribunal of fact had no right to come to a conclusion contrary to the one reached by another Bench of the same Tribunal on the same facts. If the Tribunal wanted to take an opinion different from the one taken by an earlier Bench, it ought to place the matter before the President of the Tribunal so that he could have the case referred to a Bench consisting of three or more members for which there was provision in the Income-tax Act itself." The requisite provision is contained in sub-section (3) of section 255 where the President of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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