M/s. Jupiter Corporation Services Ltd., Ahmedabad v. The ACIT.,Cent.Circle-1(1),, Ahmedabad

ITA 2850/AHD/2011 | 1995-1996
Pronouncement Date: 24-04-2015 | Result: Dismissed

Appeal Details

RSA Number 285020514 RSA 2011
Assessee PAN AAACJ5265F
Bench Ahmedabad
Appeal Number ITA 2850/AHD/2011
Duration Of Justice 3 year(s) 5 month(s) 7 day(s)
Appellant M/s. Jupiter Corporation Services Ltd., Ahmedabad
Respondent The ACIT.,Cent.Circle-1(1),, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 24-04-2015
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 24-04-2015
Date Of Final Hearing 22-04-2015
Next Hearing Date 22-04-2015
Assessment Year 1995-1996
Appeal Filed On 17-11-2011
Judgment Text
I.T.A. NOS.: 2850 2144 AND 2145/AHD/11 ASSESSMENT YEARS: 1995-96 AND 1996-97 PAGE 1 OF 11 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH AHMEDABAD [CORAM: PRAMOD KUMAR AM AND S.S. GODARA JM] I.T.A. NOS.: 2850 AND 2144/AHD/11 ASSESSMENT YEARS: 1995-96 AND 1996-97 JUPITER CORPORATION SERVICES LIMITED ........... ..........APPELLANT [PAN: AAACJ5265F] VS. DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 1(1) AHMEDABAD ...R ESPONDENT I.T.A. NO.: 2145/AHD/11 ASSESSMENT YEAR: 1996-97 SULOCHANA V GUPTA .....................APPELLA NT [PAN: ADHPG1324P] VS. DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 1(1) AHMEDABAD .RES PONDENT APPEARANCES BY: TUSHAR P HEMANI FOR THE APPELLANT SUBHASH BAINS FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : APRIL 22 2015 DATE OF PRONOUNCING THE ORDER : APRIL 24 2015 O R D E R PER PRAMOD KUMAR AM: 1. WHEN THESE APPEALS WERE ORIGINALLY HEARD BY THE TRIBUNAL THERE WAS A DIFFERENCE BETWEEN THE JUDICIAL MEMBER AND THE ACCO UNTANT MEMBER THEN CONSTITUTING THIS DIVISION BENCH. TO COME OUT OF TH IS CUL-DE-SAC THE FOLLOWING QUESTION WAS REFERRED FOR THE ESTEEMED OPINION OF A THIRD MEMBER TO BE NOMINATED BY HONBLE PRESIDENT OF THIS TRIBUNAL UN DER SECTION 255(4) OF THE INCOME TAX ACT 1961: I.T.A. NOS.: 2850 2144 AND 2145/AHD/11 ASSESSMENT YEARS: 1995-96 AND 1996-97 PAGE 2 OF 11 WHETHER UNDER THE FACTS AND CIRCUMSTANCES OF THE C ASE LEARNED CIT(A) WAS JUSTIFIED IN CONFIRMING THE PENALTY UNDE R SECTION 271(1)(C) OF THE ACT? 2. IT WAS IN THIS BACKDROP THAT HONBLE SHRI I P BA NSAL JUDICIAL MEMBER WAS FINALLY NOMINATED AS A THIRD MEMBER AND VIDE HIS ORDER DATED 16 TH JULY 2014 CONCLUDED AS FOLLOWS: .I CONCUR WITH THE VIEW TAKEN BY HONBLE ACCOUNTA NT MEMBER THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE DELETIO N OF PENALTY WAS NOT JUSTIFIED. THEREFORE MY ANSWER TO THE QUESTION IS THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE LEAR NED CIT(A) WAS JUSTIFIED IN CONFIRMING THE PENALTY LEVIED UNDER SE CTION 271(1)(C) OF THE ACT. 3. THE OPINION SO EXPRESSED BY THE HONBLE THIRD M EMBER AS ALSO THE RESPECTIVE SEPARATE ORDERS PASSED BY THEN JUDICIAL MEMBER AND THE THEN ACCOUNTANT MEMBER CONSTITUTING THIS DIVISION BENCH ARE NOW PLACED BEFORE US FOR GIVING EFFECT TO THE MAJORITY OPINION. 4. SHRI TUSHAR P HEMANI LEARNED COUNSEL FOR THE AS SESSEE SEEKS ADJOURNMENT ON THE GROUND THAT THE QUANTUM PROCEEDI NGS ARE PENDING BEFORE HONBLE GUJARAT HIGH COURT AND ARE LIKELY TO COME U P FOR FINAL HEARING SOON. WHEN WE EXPRESSED OUR DISINCLINATION TO ACCEPT HIS REQUEST FOR ADJOURNMENT HE MADE ELABORATE SUBMISSIONS ON WHY THE THIRD MEMBER EFFECT EVEN ON MERITS CANNOT GIVEN IN THIS CASE AT THIS STAGE. IT IS SUBM ITTED THAT IT IS A FIT CASE IN WHICH EVEN THE THIRD MEMBER EFFECT PROCEEDINGS SHOULD BE REFERRED TO A SPECIAL BENCH OF THREE OR MEMBERS SINCE THE LEARNED THIRD MEMBER IN HIS OPINION HAS DISREGARDED THE DIVISION BENCH ORDERS. OUR ATTENTIO N IS INVITED TO A RECENT JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS VALLABHDAS VITHALDAS [(2015) 56 TAXMANN.COM 300 (GU J)] WHEREIN IT IS HELD I.T.A. NOS.: 2850 2144 AND 2145/AHD/11 ASSESSMENT YEARS: 1995-96 AND 1996-97 PAGE 3 OF 11 THAT THE DECISIONS OF THE DIVISION BENCHES MUST BIN D THE SINGLE MEMBER BENCHES. LEARNED COUNSEL THEN POINTS OUT THAT A THIRD MEMBER DECISION CANNOT BE EQUATED WITH A SPECIAL BENCH DECISION OF THREE MEMB ERS WHICH MAY NOT BE FETTERED BY THE DIVISION BENCH RULINGS AND THEREF ORE LEARNED THIRD MEMBER WAS CLEARLY IN ERROR IN DISREGARDING THE EARLIER DI VISION BENCHES DIRECTLY ON THE ISSUE IN FAVOUR OF THE ASSESSEE. IN CASE LEARNED T HIRD MEMBER HAD ANY DOUBTS ON THE CORRECTNESS OF THE DIVISION BENCH DECISIONS ACCORDING TO THE LEARNED COUNSEL ALL HE COULD HAVE DONE WAS TO REFER THE MA TTER FOR CONSTITUTION OF A SPECIAL BENCH OF THREE OR MORE MEMBERS. HE FURTHER SUBMITS THAT AS ON NOW THE OPINION EXPRESSED BY THE THIRD MEMBER IS NOTHING MO RE THAN AN OPINION BUT OUR GIVING EFFECT TO SUCH AN OPINION WILL RESULT INTO A N ORDER OF THE TRIBUNAL COMING INTO EXISTENCE BUT THEN THIS ORDER WILL BE DIRECTLY CONTRARY TO THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT. OUR ATTENTION IS ALSO INVITED TO THE JUDICIAL PRECEDENTS IN THE CASES OF SAYAJI IRON & ENGG CO LTD VS CIT [(2002) 253 ITR 749 (GUJ)] UNION OF INDIA VS PARAS LAMINATES PVT LTD [(1990) 1 86 ITR 722(SC)] PRADIP CHNDAR PARIJA VS PRAMOD CHANDRA PATNAIK [(20 02) 254 ITR 99 (SC)] AGARWAL WAREHOUSING AND LEASING LTD VS CIT [(2002) 257 ITR 235 (MP)] AND CIT VS L G RAMAMURTHI & ORS [(1977) 110 ITR 453 (MADRAS)] . LEARNED COUNSEL FAIRLY ADMITS THAT THE IN THE TH IRD MEMBER ORDER THE JUDICIAL PRECEDENT IN THE CASE OF SAYAJI IRON (SUPRA) HAS BEEN DEALT WITH AND DISTINGUISHED BUT NOT ONLY HE SUBMITS THAT THE THIR D MEMBER DECISION WAS ERRONEOUS ON MERITS HE ALSO SUBMITS THAT IT IS NOT OPEN TO A LOWER FORUM LIKE THIS TRIBUNAL TO DISREGARD A DECISION OF THE HONBL E HIGH COURT THAT IT HAS NOT TAKEN INTO ACCOUNT AN EARLIER DECISION ON THE SAME ISSUE. WE ARE THUS URGED TO DESIST FROM SUCH AN EXERCISE AND FROM PASSING AN OR DER WHICH IS WHOLLY UNSUSTAINABLE IN LAW AND IN COMPLETE DISREGARD TO B INDING JUDICIAL PRECEDENTS. IT IS LEARNED COUNSELS PRAYER THAT THE MATTER SHOU LD BE REFERRED TO HONBLE PRESIDENT FOR CONSTITUTION OF A SPECIAL BENCH TO RE SOLVE THIS ISSUE. 5. SHRI SUBHASH BAINS LEARNED COMMISSIONER (DR) V EHEMENTLY OPPOSES THESE SUBMISSIONS ADVANCED BY THE ASSESSEE. HE SUB MITS THAT THE VALUABLE TIME OF THE BENCH IS BEING WASTED AGAIN AND AGAIN EVEN B Y CAUSING DELAY IN GIVING I.T.A. NOS.: 2850 2144 AND 2145/AHD/11 ASSESSMENT YEARS: 1995-96 AND 1996-97 PAGE 4 OF 11 EFFECT TO THE THIRD MEMBER DECISION. HE URGES US TO REJECT THE REQUEST FOR YET ANOTHER REFERENCE TO HONBLE PRESIDENT FOR CONSTITU TION OF A SPECIAL BENCH AND SUBMITS THAT IN THIS CASE THE PROCEEDINGS ARE BEING DRAGGED WITHOUT ANY VALID REASON. IT IS POINTED OUT THAT THIS IS A CASE IN WH ICH HONBLE MEMBER NOMINATED AS THIRD MEMBER HAS BEEN CHANGED ONCE AND THAT EVE N ALMOST ONE YEAR AFTER THE THIRD MEMBER OPINION IS EXPRESSED THE DISPOSAL OF THESE APPEALS IS BEING AVOIDED DUE TO DILATORY TACTICS EMPLOYED BY THE ASS ESSEE. IT IS NOT THE CASE THAT THE DECISIONS OF THE COORDINATE BENCHES HAVE NOT BE EN FOLLOWED WITHOUT ANY REASONS ACCORDING TO THE LEARNED COMMISSIONER (DR) BUT THE LEARNED THIRD MEMBER IN A VERY ERUDITE AND DETAILED ORDER HAS G IVEN SPECIFIC REASONS AS TO WHY THESE DECISIONS DONOT HOLD GOOD IN THE PRESENT CASE. LEARNED COMMISSIONER (DR) SUBMITS THAT AS TO WHETHER OR NOT THE REASONIN G OF THE THIRD MEMBER IS CORRECT IS SOMETHING TO BE ADJUDICATED BY HONBLE C OURTS ABOVE AND THAT WE SHOULD NOT EVEN SIT IN JUDGMENT OVER THE SAME. HE S UBMITS THAT THIS TRIBUNAL IS NOT THE END OF THE ROAD SO FAR AS THIS LITIGATION I S CONCERNED AND IN CASE THE ASSESSEE IS AGGRIEVED OF WHAT HAS BEEN DECIDED BY T HE MAJORITY IN THIS CASE IT IS CERTAINLY OPEN TO HIM TO CHALLENGE THE DECISION BEF ORE THE HIGHER FORUMS. HE SUBMITS THAT THE TWO OUT OF THREE MEMBERS HAVE ALRE ADY GIVEN THEIR VIEWS IN FAVOUR OF THE STAND OF THE ASSESSING OFFICER AND AL L THAT WE ARE REQUIRED TO DO AT THIS STAGE IS TO GIVE EFFECT TO THE MAJORITY VIEWS. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF T HE APPLICABLE LEGAL POSITION. 7. AS SHRI HEMANI RIGHTLY POINTS OUT THE LEGAL POS ITION AS IT EXISTS NOW POST VALLABHDAS VITHALDAS DECISION (SUPRA) BY HONBLE JURISDICTIONAL HIGH COURT IS THAT THE DECISIONS OF THE DIVISION BENCHES BIND THE SINGLE MEMBER BENCH EVEN WHEN SUCH A SINGLE MEMBER BENCH IS A THIRD MEMBER B ENCH. IN COMING TO THIS CONCLUSION HIS LORDSHIP HONBLE JUSTICE KURESHI W HO WAS HIMSELF SITTING AS A REFERRAL JUDGE TO EXPRESS HIS VIEWS ON A POINT ON W HICH THE DIVISION BENCH HAD DISAGREED IN THIS CASE HAS AFTER AN ELABORATE SUR VEY OF JUDICIAL GUIDANCE AND ACADEMIC LITERATURE ON THIS ISSUE CONCLUDED AS FOL LOWS: I.T.A. NOS.: 2850 2144 AND 2145/AHD/11 ASSESSMENT YEARS: 1995-96 AND 1996-97 PAGE 5 OF 11 IT CAN THUS BE SEEN THAT THE LAW OF PRECEDENT HEAV ILY RELIES ON THE COLLECTIVE DECISION MAKING PROCESS WHERE MULTIPLE L EGAL MINDS ARE SIMULTANEOUSLY APPLIED ASSISTED BY LEGAL RESEARCH A ND PRESENTATION OF LEGAL ARGUMENTS. WHEN SUCH MATERIALS AND LEGAL C ONTENTIONS ARE PROCESSED BY SEVERAL JUDGES THE DECISION THAT IS R ENDERED EVEN IF NOT UNANIMOUS HAS THE ADVANTAGE OF INPUT FROM LARGER NU MBER OF LEGALLY TRAINED MINDS. IN THE PRESENT CASE UNLIKE A CASE O F LARGER BENCH WHERE THREE OR MORE JUDGES WOULD BE SIMULTANEOUSLY HEARING A QUESTION OF LAW WITH THE ASSISTANCE OF SAME SET OF ARGUMENTS I AM AS A REFERRAL JUDGE LEFT TO CHOOSE BETWEEN ONE OF THE TWO OPINIONS OF THE DIFFERING JUDGES WHICH IN MY OPINION IS CLOSER TO THE CORRECT LEGAL POSITION. THIS COMPLETELY ROBS THE PROCESS OF PLURA LITY IN THE DECISION MAKING WHICH IS THE FOUNDATION OF LAW OF PRECEDENT WHERE A JUDGMENT OF A BENCH WOULD BIND THE BENCH OF EQUAL O R LESSER NUMBER OF JUDGES EVEN IF IT IS NOT A UNANIMOUS OPINION. UN DER THE CIRCUMSTANCES I FEEL BOUND BY THE DECISIONS OF THE LATER DIVISION BENCHES ON THE POINT WHICH ARISES DIRECTLY IN THE P RESENT REFERENCE 8. VIEWED THUS A LARGER BENCH DECISION BINDS THE BENCH OF A LESSER STRENGTH BECAUSE OF THE PLURALITY IN THE DECISION MAKING PRO CESS AND BECAUSE OF THE COLLECTIVE APPLICATION OF MIND. IN SIMPLE WORDS AS HELD BY THEIR LORDSHIPS WHAT THREE MINDS DO TOGETHER EVEN WHEN THE RESULT IS NO T UNANIMOUS IS TREATED AS INTELLECTUALLY SUPERIOR TO WHAT TWO MINDS DO TOGETH ER AND BY THE SAME LOGIC WHAT TWO MINDS DO TOGETHER IS CONSIDERED TO BE INTE LLECTUALLY SUPERIOR TO WHAT A SINGLE MIND DOES ALONE. LET US NOT FORGET THAT THE DISSENTING JUDICIAL VIEWS ON THE DIVISION BENCHES AS ALSO THE VIEWS OF THE THIRD MEMBER ARE FROM THE SAME LEVEL IN THE JUDICIAL HIERARCHY AND THEREFORE THE VIEWS OF THE THIRD MEMBER CANNOT HAVE ANY EDGE OVER VIEWS OF THE OTHER MEMBER S. OF COURSE WHEN DIVISION BENCHES ITSELF ALSO HAVE CONFLICTING VIEWS ON THE I SSUES ON WHICH MEMBERS OF THE DIVISION BENCHES DIFFER OR WHEN MAJORITY VIEW IS NO T POSSIBLE AS A RESULT OF A I.T.A. NOS.: 2850 2144 AND 2145/AHD/11 ASSESSMENT YEARS: 1995-96 AND 1996-97 PAGE 6 OF 11 SINGLE MEMBER BENCH SUCH AS IN A SITUATION IN WHIC H ONE OF THE DISSENTING MEMBERS HAS NOT STATED HIS VIEWS ON AN ASPECT WHICH IS CRUCIAL AND ON WHICH THE OTHER MEMBER HAS EXPRESSED HIS VIEWS IT IS POS SIBLE TO CONSTITUTE THIRD MEMBER BENCHES OF MORE THAN ONE MEMBERS. THAT PRECI SELY COULD BE THE REASON AS TO WHY EVEN WHILE NOMINATING THE THIRD MEMBER UN DER SECTION 255(4) HONBLE PRESIDENT OF THIS TRIBUNAL HAS THE POWER OF REFERRING THE CASE FOR HEARING ON SUCH POINT OR POINTS (OF DIFFERENCE) BY ONE OR MORE OF THE OTHER MEMBERS OF THE APPELLATE TRIBUNAL . VIEWED FROM THIS PERSPECTIVE AND AS HELD BY HONBLE JURISDICTIONAL HIGH COURT THE THIR D MEMBER IS BOUND BY THE DECISIONS RENDERED BY THE BENCHES OF GREATER STRENG TH. THAT IS THE LEGAL POSITION SO FAR AS AT LEAST THE JURISDICTION OF HONBLE GUJA RAT HIGH COURT IS CONCERNED POST VALLABHDAS VITHALDAS (SUPRA) DECISION BUT EVEN AS WE HOLD SO WE ARE ALIVE TO THE FACT THAT HONBLE DELHI HIGH COURT HAD IN THE CASE OF P C PURI VS CIT [(1985) 151 ITR 584 (DEL)] EXPRESSED A CONTRARY VIEW ON THIS ISSUE WHICH HELD THE FIELD TILL WE HAD THE BENEFIT OF GUIDANCE FROM HONBLE JURISDICTIONAL HIGH COURT. THE APPROACH ADOPTED BY THE LEARNED THIRD ME MBER WAS QUITE IN CONSONANCE WITH THE LEGAL POSITION SO PREVAILING AT THAT POINT OF TIME. FOR THE SAKE OF COMPLETENESS OF DISCUSSION WE SET OUT THE VIEWS SO TAKEN BY HONBLE DELHI HIGH COURT AND LEAVE IT AT THAT:- THERE IS NO DIFFERENCE REALLY SPEAKING BETWEEN A FULL BENCH OF THREE JUDGES SITTING TOGETHER AND THIS METHOD OF REFERRIN G TO THE THIRD JUDGE IN THE CASE OF A DIFFERENCE OF OPINION BETWEE N THE TWO JUDGES. WHETHER THE FIRST METHOD IS ADOPTED OR THE SECOND 'OPINION OF THE MAJORITY' WILL BE DECISIVE. IN THIS CASE THERE IS A FORMAL REFERENCE TO A THIRD JUDGE TO ASCERTAIN HIS OPINION. HIS IS THE DECIDING VOICE. HE TURNS THE SCALES. THE THIRD JUDGE IS THE FULL BENCH . NOT ALONE. BUT ALONG WITH THE TWO OTHERS WHO FIRST HEARD THE CASE. WHETHER THE THREE JUDGES SIT AT THE SAME TIME OR AT DIFFERENT T IMESTWO AT ONE TIME AND THE THIRD HEARING THE MATTER LATER ON A D IFFERENCE OF OPINIONDOES NOT MAKE MUCH DIFFERENCE. AS HAS HAPPE NED IN THIS CASE THE TWO JUDGES HAVE DIFFERED. SO THE CASE HAS COME TO ME THE I.T.A. NOS.: 2850 2144 AND 2145/AHD/11 ASSESSMENT YEARS: 1995-96 AND 1996-97 PAGE 7 OF 11 THIRD JUDGE. THE TWO JUDGES HAVE EXPRESSED THEIR OP INION. I AM NOW CALLED UPON TO GIVE MY OPINION. THE OPINION OF THE MAJORITY WILL PREVAIL. ALL THAT HAPPENS IS THAT THE THIRD IS SEGR EGATED FROM THE TWO AND DOES NOT SIT WITH THEM. HE COMES IN LATER ON WH EN THERE IS A DIFFERENCE OF OPINION BETWEEN THEM. IN ALL CASES I T IS THE THEORY OF NUMBERS WHICH IS THE FOUNDATION OF THE DOCTRINE OF STARE DECISIS. MAJORITY IS A TERM SIGNIFYING THE GREATER NUMBER. C OUNTING OF HEADS UNDERLIES THE THEORY OF JUDICIAL PRECEDENTS AS IN A NY MAJORITY DECISION. THE CONSTITUTIONAL REQUIREMENT OF A CONST ITUTION COURT OF FIVE JUDGES IS BASED ON THIS THEORY. SIMILARLY THE CPC 1908 ENACTS THAT IN THE CASE OF A DIFFERENCE OF OPINION THE MA TTER HAS TO BE REFERRED TO A THIRD JUDGE. (SEE SEC. 98 CPC). IN M Y OPINION THE REFERENCE WAS CORRECTLY MADE TO ME AS THE THIRD JUD GE. 9. HOWEVER BEFORE WE ADDRESS OURSELVES TO THE CORR ECTNESS OF FUNDAMENTAL FACTUAL ASSUMPTION UNDERLYING THE CONTENTIONS ADVAN CED BY THE LEARNED COUNSEL THAT THE DECISION OF THE LEARNED THIRD MEM BER IS UNSUSTAINABLE IN LAW INASMUCH AS IT IS CONTRARY TO THE DECISIONS OF THE DIVISION BENCHES DIRECTLY ON THE ISSUE BEFORE THE LEARNED THIRD MEMBER WE STILL HAVE TO DEAL WITH THE ISSUE AS WAS RAISED BY THE LEARNED COMMISSIONER (DR) AS TO WHETHER AT THE STAGE OF GIVING EFFECT TO THE MAJORITY VIEWS UNDER SECTION 2 55(4) THE DIVISION BENCH CAN TAKE UP ANY OTHER ISSUES OTHER THAN THE SIMPLY IMP LEMENTING THE MAJORITY VIEWS ON THE BASIS OF THE VIEWS ALREADY EXPRESSED BY THE DIVISION BENCH MEMBERS AND THE THIRD MEMBER IRRESPECTIVE OF RELEVANCE OF SUCH ISSUES EVEN IF ANY TO THE APPEAL. WE FIND THAT IN THE CASE OF B T PATIL & SONS BELGAUM CONSTRUCTIONS PVT LTD VS ACIT (ITA NOS 1408 AND 1409/PN/2003; OR DER DATED 28 TH FEBRUARY 2013) A COORDINATE BENCH OF THIS TRIBUNAL WAS IN SEISIN OF A SITUATION IN WHICH BY THE TIME THE DIVISION BENCH WAS CALLED UPON TO GIVE EFFECT TO THE THREE MEMBER THIRD MEMBER BENCH DECISION {REPORTED AS B T PATIL & SONS BELGAUM CONSTRUCTIONS PVT LTD VS ACIT [1 ITR (TRIBU NAL) 703] } THE DIVISION BENCH ALSO HAD THE BENEFIT OF GUIDANCE FROM HONBLE JURISDICTIONAL HIGH COURT ON THAT ISSUE AND THE ASSESSEE DID OBTAIN A DIRECTION S FROM THE HONBLE HIGH COURT I.T.A. NOS.: 2850 2144 AND 2145/AHD/11 ASSESSMENT YEARS: 1995-96 AND 1996-97 PAGE 8 OF 11 TO TAKE INTO ACCOUNT INTER ALIA THIS JUDICIAL DEVELOPMENT AS WELL. IN THE COURSE O F SO GIVING EFFECT TO THE MAJORITY VIEWS THE COORDIN ATE BENCH INTER ALIA OBSERVED AS FOLLOWS: 4. WHILE THE SAID APPEALS ARE PENDING BEFORE THE HO N'BLE TRIBUNAL TO GIVE EFFECT TO THE OPINION OF THE THIRD MEMBER AS PER TH E PROVISIONS OF SECTION 255(4) OF THE ACT THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF ABG HEAVY INDUSTRIES LTD. PASSED AN ORDER GRANTING DEDUCTION TO THE SAID ASSESSEE U/S. 80IA(4) OF THE ACT. THE SAID JURISDICTIONAL ORDER I S CONTRARY TO THE OPINION GIVEN BY THE THIRD MEMBER OF THE TRIBUNAL. MEANWHIL E THE APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE TRIBUNAL DISM ISSING THE APPEALS OF THE ASSESSEE IN LIMINE BEFORE THE HON'BLE BOMBAY HIGH COURT CAME UP FOR HEARING ON 24/01/2013. IN THE COURSE OF HEARING BEF ORE THE HON'BLE BOMBAY HIGH COURT THE COUNSEL OF THE ASSESSEE BROUG HT TO THE NOTICE OF THE HON'BLE HIGH COURT THE FACT THAT THE TRIBUNAL IN TH E MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE HAD RECALLED ITS ORDER AND THE SAID MATTER WAS NOW FIXED FOR HEARING ON 15/02/2013. AS SUCH TH E ASSESSEE REQUESTED TO WITHDRAW THE SAID APPEAL. THE ASSESSEE ALSO DREW AT TENTION OF THE HON'BLE HIGH COURT TO THE DECISION OF ABG HEAVY INDUSTRIES AND REQUESTED THE HON'BLE BOMBAY HIGH COURT TO DIRECT THE TRIBUNAL TO CONSIDER THE ABG HEAVY INDUSTRIES DECISION ON THE ISSUE WHILE GIVING EFFECT TO THE OPINION OF THE THIRD MEMBER AS PER THE PROVISIONS OF SECTION 2 55(4) OF THE ACT. 5. THE HON'BLE BOMBAY HIGH COURT PERMITTED THE COUN SEL OF THE ASSESSEE TO WITHDRAW THE SAID APPEALS. WHILE PASSING THE ORDER THE HON'BLE HIGH COURT HAS KEPT ALL THE CONTENTIONS OPEN AND FURTHER DIREC TED THE TRIBUNAL TO CONSIDER THE DECISION OF THE ABG HEAVY INDUSTRIES A ND OTHER DECISIONS WHILE PASSING THEIR ORDER GIVING EFFECT TO THE OPINION OF THE THIRD MEMBER AS PER THE PROVISIONS OF SECTION 255(4) OF THE ACT. THE RE LEVANT PORTION OF THE SAID ORDER OF HONBLE JURISDICTIONAL HIGH COURT IN ITA N O.1307 OF 2011 FOR A.Y. 2000-01 AND 1640 OF 2011 FOR A.Y. 2001-02 IS AS UND ER: I.T.A. NOS.: 2850 2144 AND 2145/AHD/11 ASSESSMENT YEARS: 1995-96 AND 1996-97 PAGE 9 OF 11 1. SINCE THE TRIBUNAL HAS RECALLED THE IMPUGNED OR DER DATED 23.03.2011 THE APPELLANT IS WITHDRAWING ITS APPEAL . 2. FURTHER WHILE CONSIDERING THE MATTER AFRESH TH E TRIBUNAL WILL TAKE INTO CONSIDERATION ALL DECISIONS INCLUDIN G THE DECISION OF THIS COURT IN THE MATTER OF CIT V. ABG HEAVY IND USTRIES LTD. REPORTED IN 322 ITR PAGE 323. ALL CONTENTIONS ARE K EPT OPEN. 3. THE APPEAL IS DISMISSED OF IN ABOVE TERMS. 6. THE ISSUE BEFORE US IS WHETHER THE TRIBUNAL WHIL E COMPLYING WITH THE PROVISIONS OF SECTION 255(4) OF THE ACT CAN CONSIDE R THE JUDGMENT OF THE HON'BLE HIGH COURT IN THE CASE OF ABG HEAVY INDUSTR IES. IN LIGHT OF THE CLEAR DIRECTIONS GIVEN BY THE HON'BLE BOMBAY HIGH COURT I N THE APPEALS FILED BY THE ASSESSEE FOR THE IMPUGNED ASSESSMENT YEARS INTE R ALIA DIRECTED THE TRIBUNAL TO CONSIDER THE SAID DECISION OF ABG HEAVY INDUSTRIES AND ALL OTHER DECISIONS WE CAN CONSIDER THE SAID JUDGMENTS OF AB G HEAVY INDUSTRIES AND ALSO THE OTHER JUDGMENTS FOR ALLOWING THE DEDUCTION U/S. 80IA(4) OF THE ACT WHILE GIVING EFFECT TO THE OPINION OF THE THIRD MEM BER AS PER THE PROVISIONS OF SECTION 255(4) OF THE ACT. FOLLOWING THE DIRECTI ONS OF THE HON'BLE BOMBAY HIGH COURT BEING THE JURISDICTIONAL HIGH COURT THE TRIBUNAL IS BOUND TO FOLLOW THE DIRECTIONS AND WE DO ACCORDINGLY. 10. IT WAS THUS A CASE IN WHICH SPECIFIC DIRECTIONS WERE ISSUED BY THE HONBLE HIGH COURT TO TAKE INTO ACCOUNT THE SUBSEQUENT JUDI CIAL DEVELOPMENTS BY WAY OF ADJUDICATION ON THE ISSUE IN APPEAL BY HONBLE COUR TS ABOVE. THE DIVISION BENCH HAS TAKING NOTE OF THESE DIRECTIONS AND INDICATING THEIR LIMITATIONS IN THE LIGHT OF THESE DIRECTIONS HAVE SPECIFICALLY OBSERVED THA T THE TRIBUNAL IS BOUND TO FOLLOW THE DIRECTIONS AND WE DO SO ACCORDINGLY. I F THE DIVISION BENCH HAD THE POWERS TO TAKE NOTE OF THE SUBSEQUENT JUDICIAL DEVE LOPMENTS POST THE EXPRESSION OF VIEWS BY DIFFERENT MEMBERS CONSTITUTI NG THE DIVISION BENCH AND THE THIRD MEMBER BENCH AT THE STAGE OF GIVING EFFE CT TO THE MAJORITY VIEW THERE I.T.A. NOS.: 2850 2144 AND 2145/AHD/11 ASSESSMENT YEARS: 1995-96 AND 1996-97 PAGE 10 OF 11 WAS NO NEED TO TAKE NOTE OF HONBLE HIGH COURTS DI RECTIONS AND STATE THAT THIS IS BECAUSE OF THE HONBLE HIGH COURT DIRECTIONS THAT T HE SUBSEQUENT JUDICIAL DEVELOPMENTS ARE BEING TAKEN NOTE OF. THESE DIRECTI ONS WERE CASE SPECIFIC AND CANNOT BE TREATED AS A GENERAL INTERPRETATION OF TH E SCOPE OF JUDICIAL WORK IN THE COURSE OF GIVING THIRD MEMBER EFFECT. NO OTHER JUDI CIAL PRECEDENT SUPPORTING THE STAND OF THE ASSESSEE HAS BEEN BROUGHT TO OUR NOTICE. IN VIEW OF THESE DISCUSSIONS AND AS SHRI BAINS RIGHTS CONTENDS AT THE TIME OF GIVING EFFECT TO THE MAJORITY VIEW IT CANNOT NORMALLY BE OPEN TO THE TR IBUNAL TO GO BEYOND THE EXERCISE OF GIVING EFFECT TO THE MAJORITY VIEWS HO WSOEVER MECHANICAL IT MAY SEEM. IN THE CASE OF DISSENTING SITUATIONS ON THE D IVISION BENCH THE PROCESS OF JUDICIAL ADJUDICATION IS COMPLETE WHEN THE THIRD ME MBER NOMINATED BY HONBLE PRESIDENT RESOLVES THE IMPASSE BY EXPRESSING HIS V IEWS AND THUS ENABLING A MAJORITY VIEW ON THE POINT OR POINTS OF DIFFERENCE. WHAT THEN REMAINS FOR THE DIVISION BENCH IS SIMPLY IDENTIFYING THE MAJORITY V IEW AND DISPOSE OF THE APPEAL ON THE BASIS OF THE MAJORITY VIEWS. IN THE COURSE O F THIS EXERCISE IT IS IN OUR HUMBLE UNDERSTANDING NOT OPEN TO THE DIVISION BENC H TO REVISIT THE ADJUDICATION PROCESS AND START EXAMINING THE LEGAL ISSUES. OF CO URSE WE MAY HASTEN TO ADD THAT ALL THAT THE TRIBUNAL DOES REMAINS AND SHALL ALWAYS REMAIN SUBJECT TO THE DIRECTIONS OF THE HONBLE COURTS ABOVE AND NOTWIT HSTANDING OUR HUMBLE UNDERSTANDING ABOUT THE SCOPE OF WORK AT THIS STAGE OF PROCEEDINGS UNDER THE SCHEME OF THE INCOME TAX ACT ANY DIRECTIONS FROM T HE HONBLE COURTS ABOVE AS IN THE CASE OF B T PATIL (SUPRA) ARE TO BE LOYALLY AND UNHESITATINGLY FOLLOWED BY US. THAT IS A DIFFERENT SITUATION ALTOGETHER BUT TH EN MERELY BECAUSE SUCH DIRECTIONS HAVE BEEN ISSUED IN ONE CASE IT CANNOT BE INFERRED THAT AS A NORMAL RULE ADJUDICATION PROCESS IS TO BE STARTED DE NOVO AT THE STAGE OF MAJORITY VIEW EFFECT PROCEEDINGS. IN CASE ANYONE HAS GRIEVANCES W ITH THE MAJORITY VIEW THE AGGRIEVED PARTY CAN SEEK APPROPRIATE REMEDY AGAINST THE SAME. THAT SITUATION WILL COME ONLY WHEN THE MAJORITY VIEW IS IMPLEMENTE D AND A FORMAL ORDER IS PASSED ON THE APPEAL. HOWEVER JUST BECAUSE ONE OF THE PARTIES BEFORE US HAS A GRIEVANCE WITH THE MAJORITY VIEW NOTWITHSTANDING T HE MERITS OF SUCH GRIEVANCE EVEN IF ANY WE MUST NOT DELAY THE JUDICIAL PROCESS OF GIVING EFFECT TO THE MAJORITY VIEW. THE MAJORITY VIEW IN THESE APPEALS I S THAT THE LEARNED CIT(A) WAS I.T.A. NOS.: 2850 2144 AND 2145/AHD/11 ASSESSMENT YEARS: 1995-96 AND 1996-97 PAGE 11 OF 11 CORRECT IN CONFIRMING THE IMPUGNED PENALTIES OF RS 54 82 239 AND RS 34 90 015 IN THE CASE OF JUPITER CORPORATION SERVICES LTD FOR THE ASSESSMENT YEAR 1995-96 AND 1996-97 AND OF RS 9 17 680 IN THE CASE OF SMT SULOCHANA V GUPTA FOR THE ASSESSMENT YEAR 1996-97. WE ACCORDINGLY CONFIRM T HE SAME. 11. IN THE RESULT THE APPEALS ARE DISMISSED. PRON OUNCED IN THE OPEN COURT TODAY ON THE 24 TH DAY OF APRIL 2015. SD/- SD/- S. S. GODARA PRAMOD KUM AR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) AHMEDABAD THE 24 TH DAY OF APRIL 2015 COPIES TO: (1) THE APPELLANT (2) THE RESPON DENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ETC ASSISTANT/DEPUTY REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES AHMEDABAD