TMI Blog1997 (4) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... fees. The school was closed in the year 1988 and by that time she had accumulated Rs. 80,000. A copy of the assessment order for assessment year 1988-89 alongwith a Computation of Income and statement of affairs was also filed. It showed Rs. 80,610 available in the Capital account. Copies of the assessment orders for assessment years 1986-87 and 1987-88 were also filed. 3. The Assessing Officer (A.O.) observed that the assessments for an these years had been completed in one month and that too under section 143(1). The entire exercise was done for capital formation. No documentary evidence was filed in support of her claim. No register of school or name of other teachers was furnished. The bank account was opened on 26-7-1988 and during a very short period a sum of Rs. 78,000 was deposited. For these reasons, he concluded that the amount was only assessee's money which was shown in the guise of a loan. An addition of Rs. 78,000 was accordingly made. 4. The CIT(Appeals) dismissed the appeal summarily stating that the findings given by the Assessing Officer were quite reasonable and creditworthiness of the assessee's wife was not made out. The assessee is now in appeal before us. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bting the veracity of the statements made in the affidavits and if the deponents have also not been subjected to cross-examination for bringing out the falsity of their statements, then the Tribunal would not be justified in doubting the correctness of the statements made by the deponents in the affidavits. The finding arrived at in such a case would, according to the Supreme Court, be a finding based on pure surmise, having no basis in evidence." 9. In the present case, apart from raising his doubts, the Assessing Officer has not placed any material on record for doubting the veracity of the statements made in the affidavit. We must also keep in mind that the affidavit in question was filed in March 1992 when the limitation for completing the assessment was due to come to an end. This is so even when the explanation was sought as early as on 11th June, 1991. In the facts and circumstances of the case, it will be in the interest of justice to restore the matter to the file of the Assessing Officer with the direction to cross-examine the deponent as proposed by the ld. counsel for the assessee. If there is no response, he may draw his own conclusions. At the same time, he should m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra Rs. 78,000 out of loan from Smt. Swapna Mishra The loan creditors, viz., Dr. Shyam Prasad Mishra (assessee's father) and Shri Anup Kumar Mishra were examined by the Assessing Officer during the course of finalisation of assessment proceedings for assessment year 1990-91. The assessee's wife Smt. Swapna Mishra who is stated to have loaned a sum of Rs. 78,000 to the assessee was not produced for examination. This is pertinent point to be noted. The Assessing Officer, therefore, formed a reasonable belief that the assessee's true income chargeable to tax had escaped assessment and he, therefore, issued a notice under section 148 and served it on the assessee. In compliance thereto, no return was filed by the assessee. But a letter was filed requesting the Assessing Officer to treat the original return filed on 30th June, 1989 as return filed in compliance to his said notice issued under section 148 of the Act. It is stated by the Assessing Officer in his assessment order that in respect of notices issued by him under section 143(2) of the Act from time to time, the assessee's advocate and authorised representative Shri A.K Sarkar appeared and the case was discussed with him and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date on which the affidavit of assessee's wife Smt. Swapna Mishra was filed and between 9-3-1992 and the date of framing of the assessment stated to be made on 31-3-1992 as informed by the assessee's counsel as the date of the assessment order is not mentioned in the copy of the said order filed in the appeal record. In order to find out and uncover these true facts which were not brought to our notice during the course of hearing and which did not surface, I wanted to examine the assessment records by summoning it from the Assessing Officer and earnest efforts were also made in this direction by me; My Sr. Personal Assistant Shri Ramjee Prasad was directed-by me on 22-9-1995 to address a letter to the Junior Departmental Representative, Shri P.C. Mishra and summon assessment record from the Assessing Officer. Till the date of passing of this order by me all my efforts to get the assessment records from the Assessing Officer have been abortive. My orders and directions have been flouted. I shall be adverting more elaborately to the misconduct of the Income-tax Officer in this regard in later part of this order after giving my reasons and view. 3. I now come to the affidavit of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d alongwith the said affidavit. The Assessing Officer took that affidavit on record and on that basis came to conclusion that the assessee failed to discharge the onus which lay upon it in law (section 69 of the Act) and hence concluded that the sum of Rs. 78,000 stated to have been loaned to him by his wife was, in fact, assessee's money (income) from some undisclosed sources and, therefore, added it to the returned income. 4. Several Courts have uniformly laid down in countless decisions that the power of remand by an appellate authority should be used very sparingly and in most deserving and appropriate cases when upon closer examination of the case it is noticed that the order of the inferior Court or Tribunal is palpably and patently erroneous and illegal or that great prejudice or injustice has been caused to a party seeking remand owing to gross or flagrant violation of statutory provisions or of Rules of natural justice. It is also elementary that parties interested in obtaining relief from Courts or Tribunal's must and should place before Courts and Tribunals all the materials and evidence on which relief is sought. Failure to do so at the earliest opportunity may result ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts were made or advanced by the assessee's counsel on merits for demolishing the case made out by the Assessing Officer in relation to the impugned addition. 6. There are no two opinions that this Tribunal is final fact finding Authority on appeal and all the facts have to be placed candidly for its examination so as to enable it to arrive at and render a fair and just decision and pass order in appeal as it thinks fit as provided in section 254 of the IT Act, 1961. Neither the assessee's counsel nor the Junior Departmental Representative, Shri P.C. Mishra in the absence of assessment records from the Assessing Officer could place full, relevant and important facts commencing from the filing of the original return till the completion of the reassessment proceedings pursuant to notice under section 148 of the Act. The assessment records were, therefore, directed to be produced for examination and verification of true facts. But as recorded by me earlier elsewhere above, in spite of my order and directions relevant assessment records of the assessee were not at all produced. 7. There is no dispute that the assessee purchased and constructed a house property and very substantial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 92 and 31-3-1992 when the assessment was made. Very strange indeed. And yet the assessee wanted that the Assessing Officer should have accepted as true and correct the entire story narrated in the affidavit and should not have made the addition of Rs. 78,000 under section 69 of the Act. Though the assessee's wife voluntarily at the request of her husband (assessee) and in order to assist him in his IT case executed an affidavit but she neither bothered to go over to the office of the Assessing Officer appear before him and offer herself for examination on oath though the request as far back as 11-6-1991 was made by the Assessing Officer. Nor did he file or adduce any evidence worth its name if the same was with her. Why the evidence was withheld by her or the assessee from the Assessing Officer is not told or explained even at this belated stage of this second appeal. And curiously in this second appeal, for the first time, a grievance is made out that the Assessing Officer having failed to cross examine her, after filing of the affidavit, the addition was arbitrary and illegal and hence the matter now (at this belated stage) should go back to the Assessing Officer for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n I of the Evidence Act. Affidavit can be filed and used as evidence if for sufficient reasons Court passes an order under Order 19 Rule. I of the Civil Procedure Code (CPC). 11. By virtue of section 131 of the Act, 1961 the IT authorities have been vested with the same powers as are vested in a Court in the Code of Civil Procedure when trying a suit in respect of the following matters, viz.,--- (a) discovery and inspection; (b) enforcing the attendance of any person, including any officer of a banking company and examining him on oath; (c) compelling the production of books of account and other documents; and (d) issuing commissions. 12. To put it in simple words, the IT authorities by virtue of the said provisions have been equated with court as if trying a suit. An affidavit, therefore, cannot be filed before the Assessing Officer except in the manner provided and laid down in Order 19 rule 1 C.P.C. The Assessing Officer as is evident from his letter dated 11-6-1991 wanted the assessee's wife to be produced for examination in relation to the sources for advancing loan to the assessee to the extent of Rs. 78,000. But such simple requisition of the Assessing Officer wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the law. Judgments of the Courts should not be construed as statutes. They must be read as a whole and observations made therein should be considered in the light of the facts and circumstances of that case and the questions before the court. A decision of the court takes its colour from the questions involved in the case in which it is rendered." 14. The settled legal position in this regard has been very succinctly summed up by their Lordships of the Apex Court in the case of CIT v. Sun Engg. Works (P.) Ltd. [1992] 198 ITR 297/64 Taxman 442 in the following words at page 320:--- "It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this court, divorced from the context of the question under consideration and treat it to be the complete 'law' declared by the court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before the court. A decision of this court takes its colour from the questions involved in the case in which it is rendered and, while applying the decision to a later case, the courts must carefully try to ascertain the true princi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment year 1989-90 which is the year under appeal. The matter was followed up by me personally with the Sr. Departmental Representative and Dy. Commissioner of Income-tax, Range-I, Shri Gopal Kamal who on 2-11-1995 gave me an assurance that on or before 6-11-1995 the assessment records of the assessee will be produced as ordered and directed. But alas! till the date of passing of this order the assessment records were not at all produced. No reasons or causes have been tendered for disobeying the orders of this Tribunal for production of the assessment records. I am, therefore, compelled to presume that there has been intentional and deliberate disobedience on the pail of the departmental officials particularly the Assessing Officer in disobeying and flouting the orders and directions issued by this Tribunal rendering the concerned departmental officials liable for imposition of penalty as laid down in section 272A(1)(c) of the Act. In addition to imposition of penalty under section 272A(1)(c) omission to produce documents before public servant by person legally bound to give is an offence punishable under section 175 of the Indian Penal Code (IPC). Any act of disobeying the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of Rs. 78,000 is required to be upheld and the same as such is upheld. 19. In the result, the appeal of the assessee is, therefore, dismissed. I.T Appeal No. 1488 (Pat.) of 1992, (Asst. Year : 1989-90) Supplementary Order by Shri V.K. Sinha, A.M. - I am constrained to pass a supplementary order since my learned brother has considered certain developments and incidents after the hearing of the appeal was closed on 19-9-1995 and about which I was not aware. My learned brother has very strongly condemned the Sr. D.R., the Jr. D.R. and the Assessing Officer on account of these developments and incidents. It is in these very unusual circumstances that this supplementary order is being passed. I find that a supplementary order was passed in the case of Vasantbhai B. Patel (HUF) v. Dy. CIT [1995] 55 ITD 118 (Ahd.)(TM) also. 2. The appeal was heard finally on 19-9-1995 and kept for orders. A proposed order passed by me was sent to my learned brother on 22-9-1995. At this stage, a need was felt by him to examine the assessment records for verification. These assessment records were not available during the hearing of the appeal and were not asked for during the hearing. A direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (3), 'a Bench shall consist of one Judicial Member and one Accountant Member." Sub-section (3) makes a provision for a single Member Bench. The President, or an authorised Member of the Tribunal, may, sitting singly, dispose off any case which has been allotted to the Bench of which he is a Member and which pertains to an assessee whose total income, as computed by the Assessing Officer in the case, does not exceed Rs. 1 lac. The first reason, therefore, is that the total income 'computed' by the Assessing Officer exceeds Rs. 1 lac. Consequently this is not a case which can be heard by a single Member Bench. The second reason is that my learned brother is not authorised to hear cases sitting singly. This is being mentioned by me only as a narration of facts. For that matter, I am also not authorised to hear cases sitting singly. The information, therefore, could not have been sought by one Member acting singly. The third reason is that even if the first two reasons did not exist, this was a case where hearing had already been done by a Division Bench and, therefore, one Member could not act singly. For these three reasons, the requisitioning of record by one Member acting sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to impose a penalty under section 272A(1)(c) of the Act. According to sub-section (3) of section 272A of the Act, penalties can be imposed under sub-section (1) by various Income-tax authorities and the Tribunal has not been vested with such power. 8. Regarding the provisions of sections 175, 188, 187 and 186 of IPC, referred to in para 16 of the order of my learned brother, this Tribunal is not competent to pronounce on their applicability. 9. This Tribunal is also not competent to pronounce on liability for Departmental action for lack of devotion to duty as provided in Rule 3 of the Central Civil Services Conduct Rules, 1964 for the Sr. D.R., Jr. D.R. and the Assessing Officer. Whether there is any case for Departmental action has to be seen only by the Competent Authority under the Conduct Rules. 10. On the basis of the material on record, it is also my considered opinion that there is no justification for any adverse remark against the Sr. D.R., Jr. D.R. or the Assessing Officer in their confidential Reports or Service Records. 11. I, therefore, differ from the order of my learned brother and hold that the adverse remarks against the Sr. D.R., Jr. D.R. and Assessing O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s precisely what I have done. In law it is not incumbent upon any Judge or Tribunal Member while discharging judicial function to take guidance, advice or consent either of his colleague who shared the Bench or of the parties or their respective representatives/counsel in the proceedings for examining and relying on any document, authors, commentary or judicial proceedings for writing or passing a Judgment or Order. To do so would amount to mockery of judicial system and demeaning the delivery of justice. 3. I am not questioning the conduct of my ld. Brother in passing an order and rendering his decision without verifying the true hidden facts from the case records of the assessee/appellant. Then why should my ld. Brother question and obtain an answer under section 255(4) from another Tribunal Member (colleague) who may perhaps be junior in status also on my conduct in discharge of my solemn judicial function. 1, therefore, cannot join with my ld. Brother in obtaining an answer from 3rd Member of the Tribunal on question No. 2 framed by him which does not arise from the respective orders passed by both of us. I do not agree for reference of question No. I with my ld. Brother as i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment proceedings for the assessment year 1990-91, the Assessing Officer (A.O.) initiated enquiries about the source of investment of Rs. 3,15,000 in the purchase and construction of a house. property, No. 213, Co-operative Colony, Bokaro Steel City, during the previous year relevant to assessment year 1989-90 (year under appeal). The assessee explained the source as under : (a) Out of savings from salary income Rs. 52,000 (b) Out of loans from (i) Dr. S.P. Misra, father Rs. 1, 17,000 (ii) Sh. Anup Misra brother Rs. 68,000 (iii) Smt. Swapna Misra, wife Rs. 78,000 While the two creditors, S/Sh. S.P. Misra Anup Misra, were produced before the Assessing Officer and examined by him, Smt. Swapna Misra, assessee's wife, was not produced. The Assessing Officer felt that the funds available with the loan creditors were not adequate to enable them to advance the amounts in question. Moreover, one of the loan creditors, Smt. Swapna Misra, was not produced for examination. He, therefore, formed a belief that income chargeable to tax for the assessment year 1989-90 had escaped assessment. Accordingly, a notice under section 148 of the Act was issued on 6-1-1992 for the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... othing but a concocted story put forth by the loan creditor Smt. Swapna Mishra. In fact it was the assessee's money which was shown in the guise of loan by the assessee's wife Smt. Swapna Mishra." 3.1 In appeal by the assessee, the CIT(Appeals), after reproducing the relevant portion of the assessment order, summarily stated that the creditworthiness of the assessee's wife is not beyond doubt and, therefore, the findings given by the Assessing Officer were quite reasonable. Accordingly, the appeal was dismissed. 4. The appeal was heard by the Appellate Tribunal on 19-9-1995. As per facts recorded by the ld. Accountant Member in his proposed order, sent on 22-9-1995, the ld. counsel for the assessee had, while inviting the Tribunal's attention to a notice dated 11-6-1991 issued by the Assessing Officer requiring the assessee to produce his wife, Smt. Swapna Misra, for examining the genuineness of the loan of Rs. 78,000 stated to have been advanced by her, submitted that in compliance an affidavit dated 9-3-1992 was filed, stating, inter alia, the source of her earnings out of which savings were effected and the particulars of the returns filed by her. According to the ld. counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the property, made available by him during the course of assessment proceedings for the assessment year 1990-91, in the file for the assessment year 1989-90, observed that in spite of such a negative and non-cooperative attitude, the Assessing Officer demonstrated his fairness and, instead of completing the assessment by making the addition, addressed a letter to the assessee on 11-6-1991 requiring him to produce the lady within a week of the receipt of the letter. However" admittedly no compliance was made and the assessee's wife did not present herself before the Assessing Officer for her examination in connection with the loan of Rs. 78,000. 4.1-1 In order to finding out as to what had happened and transpired between 11-6-1991 (when the Assessing Officer issued the letter) and 9-3-1992 (on which date the affidavit of assessee's wife was filed) and thereafter upto 31-3-1992, when the assessment was made, on which aspect neither party was able to throw any light, the ld. Judicial Member directed his P.A., on 22-9-1995, to address a letter to the Jr. Departmental Representative for obtaining the assessment records from the Assessing Officer. These were not made available to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts made by him to obtain the records, which did not yield any results, the ld. Judicial Member pointed out that he was compelled to presume that there was intentional and deliberate disobedience on the part of the departmental officers and they had rendered themselves liable for imposition of penalty as laid down in section 272A(1)(c) of the IT Act and had committed offences punishable under sections 175,186,187 and 188 of the Indian Penal Code and were also liable for departmental action as provided in Rule 3 of the CCS (Conduct) Rules, 1964. He directed the Assistant Registrar of the Bench to send an extract of paras 15 and 16 of his order to the Commissioner of Income-tax, Ranchi (under whose jurisdiction the concerned Assessing Officer was functioning) with a direction to the CIT to initiate appropriate Departmental enquiry into the whole matter and fix responsibility of concerned officer(s) with a further direction to take suitable action as provided in law against delinquent Departmental Officers and to record their misconduct in the annual confidential report/service records. A copy of the letter was also directed to be sent to the Chief Commissioner of Income-tax, Bihar, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examining and relying on any document, commentary or judicial proceedings for writing or passing a judgment. Therefore, he felt that there was no necessity to obtain an answer under section 255(4) from another Tribunal member on question No. 2 framed by the ld. Accountant Member. He also disagreed with the question at serial No. 1 as framed by the ld. Accountant Member because, in his opinion, it was argumentative. He drafted his own question which is reproduced above. 7. In the background of the facts of the case narrated above, dissenting orders of the ld. Members and there being no unanimity about the points of difference, I have first to determine as to what is/are the point(s) of difference of opinion. From the sole question suggested by the ld. Judicial Member, it is quite evident that he was of the view that as the assessee has not satisfactorily explained the investment of Rs. 78,000 in house property, the amount should straightway be assessed under section 69 of the Income-tax Act and there was nothing to warrant restoration of the matter to the Assessing Officer, as was proposed by the ld. Accountant Member (as per question No. 1 of his reference). The background of rai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e orders of the ld. Members, I am of the opinion that the Assessing Officer's letter dated 11-6-1991 requiring the assessee to produce his wife for cross-examination is the root cause of the whole controversy. The reason for my saying so is that according to the ld. Accountant Member, the plea of the assessee was that the lady's affidavit dated 9-3-1992 was filed in compliance to the notice dated 11-6-1991, after which no further questions were asked or clarification sought by the Assessing Officer nor the lady was cross examined but an adverse inference drawn. It is primarily this situation which has led the ld. Accountant Member to accept the assessee's submission that the matter may be restored to the file of the Assessing Officer. The inference from this letter is more patent in the order of the ld. Judicial Member and his following observations clearly show that he has proceeded on the assumption that the letter dated 11-6-1991 was issued by the Assessing Officer during the course of assessment proceedings for the assessment year under consideration: Para 2: "In spite of such a negative and non-cooperative attitude of the assessee, the Assessing Officer did not finalise th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment year was completed under section 143(1)(a) on 20-9-1989 accepting the income returned by the assessee. Subsequently it was learnt that the assessee has invested a sum of Rs. 3,15,000 in this assessment year in the purchase and construction at a house property situated at Co-operative Colony, B.S. City. The assessee was asked to explain the sources of this investment. The assessee has given the following sources of investment :--- Rs. 52,000 out of savings from salary income. Rs. 1,17,000 out of loan from father Dr. S.P. Mishra. Rs. 68.000 out of loan from Anup Kr. Mishra. Rs. 78 000 out of loan from wife Smt. Swapna Mishra. The loan creditors namely Sri Anup Kr. Mishra and Dr. S.P. Mishra were examined and the sources of fund available with these loan creditors are not adequate to enable them to advance this huge amount of loan. Basides the loan creditors Smt. Swapna Mishra is not assessed to tax and the assessee did not produce the creditor for examination regarding the availability of fund with her to advance the loan of the assessee. In view of the facts mentioned above I have reason to believe that income chargeable to tax has escaped assessment for this a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents in the affidavits. It was vehemently submitted that in the present case no material whatsoever has been brought on record by the Assessing Officer for doubting the veracity whereas by filing the affidavit the assessee had discharged the initial onus that lay on him. In this connection, a reference was made of the decision of the Patna High Court in Sarogi Credit Corpn. v. CIT [1976] 103 ITR 344. Reliance was also placed upon the decision of Patna High Court reported in Addl. CIT v. Hanuman Agarwal [1985] 151 ITR 150/[1984] 17 Taxman 19. It was further submitted that in view of assessee's explanation and filing of creditor's affidavit, the onus was on the Assessing Officer to issue summon under section 131 to the lady, if he considered it necessary to cross-examine her. The ld. counsel submitted that even from the point of view of section 69 of the Income-tax Act, the question whether the source of expenditure is satisfactorily explained or not cannot be decided arbitrarily but has to be adjudicated on consideration of the material available on the record, which in the present case goes in favour of the assessee. While assailing certain observations of the ld. Judicial Member, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being under challenge, but it cannot be made the sole basis for drawing an adverse inference in the assessment for the assessment year 1989-90. In MM Ipoh v. CIT [1968] 67 ITR 106, the Apex Court has explained that the assessment and the facts found are conclusive only in the year of assessment: the finding of questions of fact may be good and cogent evidence in subsequent years when the same question falls to be determined in another year, but they are not binding and conclusive. The position is much worse in the present case. There was no occasion for recording a finding in assessment year 1990-91 about the genuineness of the loan of Rs. 78,000 claimed to have been taken by the assessee from his wife. As mentioned above, the tentative inference in this behalf could be a good basis for initiating proceedings under section 147 for the assessment year 1989-90. Once this was done, it was incumbent upon the Assessing Officer to examine the question of genuineness of the loan totally afresh during the course of assessment proceedings for the assessment year 1989-90. Now, what the Assessing Officer did during the course of these proceedings, as is evident from the order sheet entry, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ld. Judicial Member, this question does not arise out of the respective orders passed by them. I find that in its supplementary order, the ld. Accountant Member has given ample justification for raising the question and I agree with him that since there is a serious difference of opinion pertaining to the jurisdictional aspect of the Appellate Tribunal, the question needs to be answered. 11. The facts concerning this issue have been narrated in paras 5 6 above. While on this issue the ld. counsel for the assessee had nothing to say, the ld. Departmental Representative submitted that the appeal was heard by the Bench on 19-9-1995 and nothing happened upto 25-9-1995. On 26-9-1995, the Departmental Representative was called by the ld. Judicial Member in the chamber and despite the fact that at the time of hearing before the Bench, the records were not required to be produced, the Departmental Representative was asked to obtain and produce the records. Further, whether the directions were competent or not is a different matter, but the fact is that efforts were made by the Departmental Representative to obtain the records and a letter was sent to the Assessing Officer on 27-9-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e exposition of procedure about the hearing of an appeal by the 'Appellate Tribunal' does not commend to the calling of records by an individual Member in the chamber for scanning it and taking a view in the matter. If this is permitted to be done, it would not and cannot produce a legal timbre or anything nearby, inter alia, for the reason that if the two Members constituting the Bench, jointly sitting while deciding an appeal, start hearing the parties separately in chamber or call for records from them, one may go northward while the other may go to the south most direction because they would be acting on different materials. This would create not only a dichotomy but would make the functioning of the Benches of the Tribunal legally impossible. Of course, in a case where one of the Members constituting the Bench is of the view that some clarification is required or some records, which were not or could not be produced at the time of hearing, need to be gone into, it is not as if he is helpless. In such a situation, he can informally discuss the matter with his other colleague on the Bench and subject to both of them agreeing, as is generally the practice, the matter could be re- ..... 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