Wealth tax---

----Reference---Appeal to Appellate Tribunal---Procedure---Accountant Member agreeing with Judicial Member---Accountant Member whether can direct that only some of the properties could be assessed---Direction of Accountant Member whether non est---Questions of law---Indian Wealth Tax Act, 1957.

The question whether, in an appeal before the Appellate Tribunal, having agreed with the views of the Judicial Member, the Accountant Member was right and within jurisdiction in giving a direction that only some of the items of property could be assessed is a question of law. The question whether such a direction was non est is also a question of law.

C.W.T. v. A.S. Guna Shaenoy (1992) 197 ITR 325 (Ker.) ref.

P.K.R. Menon and N.R.K. Nair for Petitioners. C.M. Devan and Antony Dominic forRespondents.

JUDGMENT

K.S. PARIPOORNAN, J.---Identical questions arise for consideration in these two original petitions. The Revenue is the petitioner in both the cases. The matter arises under the Wealth Tax Act, 1957. Original Petition No. 10886 of 1989 is' concerned with the assessment year 1979-80 and Original Petition No. 10888 of 1989 deals with the assessment year 1981-82. The controversy in these cases is in a narrow compass. It centres round the procedure adopted by the Appellate Tribunal in delivering its orders in the appeals. It is seen that the Accountant Member and the Judicial Member passed a common order dated August 31, 1987. The Accountant Member, after subscribing his signature to the common order, has written a separate concurring order on the same date. The question is whether the Accountant Member, having subscribed his signature to the common order, was justified in law in writing a separate order, and its impact in the disposal of the appeal. According to the Revenue, having subscribed his signature to the common order, the Accountant Member exceeded his jurisdiction in writing a separate order. It may be a concurring order. But, if the observation in the concurring order has a different impact or result, 'it is non est or without jurisdiction. Prima facie, the matter is not free from difficulty. At this stage of the proceedings, while disposing of a petition under section 27(3) of the Wealth Tax Act, we are concerned only in seeing whether a question of law arises out of the order of the Appellate Tribunal on a reasonable view of the matter. In our opinion, reading the order of the Appellate Tribunal as a whole, the questions of law formulated by the Revenue in paragraph 7 of the petition, do arise out of the appellate order. We, therefore, direct the Income-tax Appellate Tribunal, Cochin Bench, to refer the two questions of law formulated in paragraph 7 of the petition, viz:

"(1) Whether, on the facts and in the circumstances of the case and having agreed with the views of the Judicial Member, the Accountant Member is right and within jurisdiction in giving a direction that, only such of the items of properties as are mentioned in paragraph 6 of leis 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 bythe 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?"

for the decision of this Court.

Counsel for the Revenue, Mr. P.K.R. Merton, brought to our notice a Bench decision of this Court in CWT v. A.S. Guna Shenoy (1992) 197 ITR 325. In the said decision, the Bench, in similar circumstances, invoked Article 227 of the Constitution of India and annulled the separate order delivered by the Accountant Member. We have our own doubts as to whether, in a case where a party has got an efficacious statutory remedy and that remedy is invoked, for the same relief, instead of adjudicating the issue under the relevant statute, it is open to this Court to invoke the extraordinary jurisdiction of this Court under Article 227 of the Constitution. It is not necessary for the purpose of this case to pronounce finally on the said question. We refrain from doing so. Since we have very great doubts in the matter, we are not following the course adopted by the Division Bench in the decision in Guna Shenoy' s case (1992) 197 ITR 325.

The Income-tax Appellate Tribunal, Cochin Bench, is directed to refer the questions of law formulated hereinabove for the decision of this Court within three months from the date of receipt of a copy of this judgment.

A copy of this judgment, under the seal of this Court and the signature of the Registrar shall be forwarded to the Income-tax Appellate Tribunal. Cochin Bench, forthwith.

M.B.A./245/T.F.Order accordingly.