9911796707
TMI Blog1991 (9) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... ccountant Member is right and within his jurisdiction in giving a direction that only such of the items of properties as are mentioned in paragraph 6 of his order could be assessed in the hands of the assessee ? 2. Whether, on the facts and in the circumstances of the case, is not the direction by the Accountant Member in paragraph 6 of his order non est in law and could not the officer, while giving effect to the order legally, ignore the same ? " It can be seen from the order of the Tribunal that both the judicial Member and the Accountant Member have unanimously held that the case set up by the assessee that some of the properties belonged to the Hindu undivided family and, therefore, they cannot be treated as his individual properti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dict unanimously arrived at by both himself and the judicial Member. It is further argued that the remedy that can be thought of by the Revenue to get rid of the effect of this dissenting note of the Accountant Member is to apply for rectification of that order by invoking the jurisdiction of the Tribunal under section 35(1)(e) of the Wealth-tax Act, 1957. The petition, therefore, is misconceived. On the other hand, counsel for the Revenue argues that the remedy provided for under section 35(1)(e), in the circumstances, would be ineffective in that the said clause empowers the Appellate Tribunal to rectify the mistake in its order and that too only by amending the said order. The order of the Appellate Tribunal here cannot be said to includ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnible from the unanimous order. Giving a different opinion in the manner in which the Accountant Member has given it cannot be approved under law. We shall, at this stage, state the law that governs the issue. When the members of a Bench differ in opinion on any point, the point shall be decided only in accordance with the opinion of the majority if there is a majority. But if the members are equally divided, they shall state the point or points on which they differ and the case shall be referred by the President of the Appellate Tribunal for hearing the said point by one or more of the said members of the Appellate Tribunal and such point or points shall be decided according to the opinion of the majority of the members of the Appellate T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be set at naught by the High Court by issuing an order in proceedings initiated suo motu. Touching upon this aspect, learned counsel for the assessee submitted that, inasmuch as the High Court is not constituted as a court of appeal under section 257 but, on the other hand, the High Court is exercising only an advisory or consultative jurisdiction under the section and as such a strictly limited jurisdiction, the High Court cannot interfere with the dissenting note. There cannot be any dispute in regard to this aspect of the matter. To put it differently, the order the High Court would pass in a referred case cannot be said to be an order passed in the exercise of either original or appellate jurisdiction. It has no original jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f an exercise of jurisdiction not vested in them by law or in their having failed to exercise jurisdiction vested in them by law, then that will come within the scope of article 227. The question whether the High Court, under article 227, can act even on the information received from any person say for instance such information is got from the proceedings in the High Court which may not be maintainable is no more res integra in view of the pronouncements of the Supreme Court (Jijabai Vithalrao Gajre v. Pathankhan, AIR 1971 SC 315 and Shaikh Md. Umarsaheb v. Kadalaskar Hasham Karimsab, AIR 1970 SC 61). A reference to the ruling of this court in State of Kerala v. M. J. Louis[1989] 2 KLT (SN) 19, is also relevant in the context. If that be ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
