JOINT COMMISSIONER OF INCOME-TAX (TDS) VS JINDAL TRACTBEL-POWER CO. LTD.
2001 P T D 3222
[240 I T R 189]
[Karnataka High Court (India)]
Before V.K. Singhal, J
JOINT COMMISSIONER OF INCOME‑TAX (TDS)
Versus
JINDAL TRACTBEL POWER CO. LTD. and another
Writ Petitions Nos.7435 and 7436 of 1999, decided on 10/03/1999.
Income‑tax‑‑‑
‑‑‑‑Appeal to Appellate Tribunal‑‑‑Procedure‑‑‑Writ‑‑‑Difference of opinion on application for stay of recovery proceedings between two members who constituted Tribunal‑‑‑No final order which could be challenged‑‑‑Writ petition was not maintainable against observations of one of members‑‑ Indian Income Tax Act, 1961, S.254‑--‑Constitution of India, Art. 256.
Any observations made in a stay application are only tentative and do not affect the merits of the case which has to be decided by the Bench of the Tribunal after taking 'into consideration the relevant evidence, the judgment of the Courts and other facts. In a case where there is difference of opinion the point has to be decided by 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 the decision on such point or points shall be according to the opinion of the majority of the members of the Appellate Tribunal who have heard the case including those who first heard it. Unless there is a final decision whether it is on appeal or on stay application, the order cannot be considered to be final:
Held, dismissing the writ petition, that since in the eyes of law there was no order which required adjudication, the High Court could not interfere. The Tribunal had to follow the procedure laid down under section 255(4) of the Income Tax Act, 1961.
E.R. Indrakumar for Petitioner.
K.R. Prasad for Respondents.
JUDGMENT
This petition is filed by the Joint Commissioner of Income‑tax against the order passed by the Income‑tax Appellate Tribunal on the stay application submitted by the first respondent. Two applications for stay of the demand of Rs.1,86,32,311 and Rs.15,22,95,395 were moved alongwith the appeals by the assessee. The appeals are still pending. The assessee was heard on the stay application. The Bench was consisting of the learned Vice -President and the learned Judicial Member. The petitioner is aggrieved by the various observations which have been made by the learned Vice- President. The Judicial Member has not agreed with the, procedure and the finding recorded by the learned Vice‑President and a dissenting order has been passed.
At this stage without going to the dispute as to what has been observed by the learned Vice‑President or by the learned Judicial Member, it may be observed that any observations made in the stay application are only tentative and do not affect the merits of the case which has to be decided by the Bench of the Tribunal after taking into consideration the relevant evidence, the judgment of the Courts and other facts. In a case where there is difference of opinion the point has to be decided by 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 according to the opinion of the majority of the Members of the Appellate Tribunal who have heard the case including those who first heard it. Unless there is a final decision whether it is on appeal or on stay application, then, the order cannot be considered to be final In the case of stay application it is to be disposed of by the Bench, if the Members differ then, the proper course is to have the recourse to section 255(4) At this stage, I would not even go to the question whether the difference of the members exists. The question as to whether the order passed by the learned Vice‑President or the Judicial Member is in accordance with law is also not required to be examined because only the final order passed in accordance with the majority could be challenged in the proper proceedings. The petitioners may move the Tribunal for framing the questions in accordance with the provisions of section 255(4). It is the duty of the Members of the Bench who have heard the stay application to frame the point or points on, which they differ and refer the case to the President of the Tribunal for hearing on such point or points by one or more of the other Members. The President of the Tribunal has the power to constitute the Bench of Third Member or of more than one. If such a Bench is constituted there has to be one Judicial Member and one Accountant Member at least. The Third Member is only to decide those points which are referred to him. There may be a circumstance where the dispute may arise as to on which point there is difference of opinion. Before formulating the point, the Tribunal may draw the attention of the parties to the point to be referred to the Third Member and after hearing the parties the order in accordance with law may be passed. If the questions are not framed or there is any jurisdictional error in not proceeding in accordance with the provisions of section 255(4) the petitioner could move at that stage. Since in the eyes of law there is no order which requires adjudication at this stage, I do not consider it proper to interfere and leave it to the Tribunal to follow the procedure laid down under section 255(4) of the Income‑tax Act.
Much has been said about the procedure followed by the Vice President. At this stage, even on that I am not inclined to comment as the matter is yet to be heard by the Third Member because of the apparent disposed of with the above observations
MBA/312/FCOrder accordingly