TMI Blog2010 (1) TMI 628X X X X Extracts X X X X X X X X Extracts X X X X ..... IT iSTTot justified in setting aside the order of the AO. Change in the order of the tribunal - till the order is not communicated to the parties, it remains a proposed order and before communicating it to the parties, the Members can change it as many times as they want to. - Moreover, in a Third Member case, the original Members who differ on certain points, they do not become Junctus officio till the Third Member decides the issue and till effect has been given to the majority view and the same has been communicated to the parties. - Members do not become functus officio till the order is communicated to the parties. Regarding private communication between members of ITAT - since the internal communication extracted by the learned JM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et can be termed as privileged communication and therefore same could not be made part of the judicial order ? 4. Whether inclusion of internal notes and private discussions exchanged between the Members, in the judicial order are good for prestige and image of the Tribunal ? 2. The common point of difference between the two Members is whether the assessment order can be termed as erroneous and prejudicial to the interests of Revenue on the issue of allowability of bad debts. The learned JM has concurred with the view of the CIT by holding that nonconducting of proper enquiry has rendered the assessment order to be erroneous and prejudicial to the interests of Revenue. On the other hand, the learned AM has held that after the amendment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Of Revenue. It was further submitted that the CIT has only referred the matter back to the AO to verify whether the assessee had made any effort for recovery or not and hence, actually no grievance is caused to the assessee . 5. I have duly considered the rival contentions and the material on record. Undoubtedly, it is true that the AO has not discussed the issue in his order and it is also not evident from record whether he called for any information or not. To this extent, it can be said that the assessment order is erroneous. However, it is trite that in order to invoke the provisions of s. 263, twin conditions of the order being erroneous and it being prejudicial to the interests of Revenue have to the fulfilled. Having observed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt case, the debt is overdue for more than five years and therefore, it can be said that the assessee has exercised an honest judgment. Thus, when there is no need to enquire whether the debt has become actually bad or not, title allowance thereof by the AO cannot be said to be prejudicial to be interests of Revenue. Since both the conditions under s. 263 are not fulfilled, the CIT iSTTot justified in setting aside the order of the AO. On this issue, I agree with the decision taken by the learned AM. 6. The learned AM has raised three more points as mentioned earlier. Though these points are not connected with the main point of difference, I proceed to express my views in brief since they have been raised by one of the Members. The first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad debt written off by the assessee is allowable or not. If one peruses s. 36(l)(vii) of the Act, one cannot find the relevancy of any of the issues referred. to by the learned JM In his internal communication with the learned AM. In nutshell, since the internal communication extracted by the learned JM has no relevancy at all to resolve the real difference, the same should not have been made a part of the order. And since it is not relevant, I too refrain from dealing with it in detail. Suffice it to say that the private spat made public in the order has placed the Tribunal in the position of Draupady who was stripped in public gaze, with the difference that for Tribunal there is no Krishna to protect her. My head hangs in shame to see the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
