9911796707
TMI Blog1993 (5) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... difference of opinion between these members on certain points, the Bench had made a reference to the Hon'ble President under section 255(4) of the Income-tax Act and the President had nominated Shri U.T. Shah, the then Sr. Vice-President of the Tribunal for hearing on the points of difference. After hearing the parties, Shri Shah has expressed his opinion on 7-10-1992. Shri Shah has been elevated as a judge of the High Court and as such the application moved by the assessee has come up before me for disposal. 3. The Bench consisting of S/Shri G.K. Israni and G.E. Veerabhadrappa had framed the points of difference reading as under : " 1. Whether, on the facts and in the circumstnaces of the case and in law, the assessee was entitled t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods should be deducted from valuing the closing stock. which includes such material/goods even though the duties relatable to such material/goods have been allowed in computing the total income of the assessee as per the method of accounting followed by the assessee from year to year '." 5. The learned advocate for the assessee has submitted that the learned Third Member was right in observing that the issue posed in question No. 1 is not the controversy between the parties, nor there is any difference of opinion between the learned members on that aspect of the matter. He however, argued that the learned Third Member was not entitled to reframe the question or to touch a point, which was not referred to him for opinion. According to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the alternative, it was argued that the Tribunal has inherent jurisdiction to rectify a wrong committed by itself when that wrong causes prejudice to a party. It was also submitted that the error committed by the learned Third Member goes to the root of the matter and therefore, that can be rectified even under the inherent powers of the Tribunal. 9. Having considered the rival submissions and the decisions cited at the bar, I am of the opinion that the assessee cannot succeed. An application for rectification of an order lies under sub-section (2) of section 254 of the Act, 1961, which reads as under : " 254(2) The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion, the matter has to go to the regular Bench for disposal of the appeal. This position becomes clear from a reading of sub-section (4) of section 255 of the Act, which reads as under : " 255 (4) If the members of a Bench differ in opinion on any point, the point shall be decided according to 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 on such point or points by one or more of the other 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 Tribunal who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmitted by the Court or the Tribunal causes prejudice to an innocent party. In the instant case, I am of the view that no prejudice is caused to the assessee by the order passed by the learned Third Member. In case, the Third Member has exceeded his jurisdiction in refraining the question and expressing an opinion on a point, which was not referred to him for opinion, then this aspect of the matter can be raised before the Bench when the appeal comes up for hearing before the Tribunal. In talking this view. reference can be made to the decision of the Allahabad High Court in Jan Mohammed's case wherein it has been observed : " The Tribunal, when finally disposing of the appeal, may, no doubt, allow other points to be raised before it, if ..... X X X X Extracts X X X X X X X X Extracts X X X X
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