TaxTMI 
TaxTMI 
2015 (5) TMI 510
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....oncur with the view taken by Hon'ble Accountant Member that on the facts and circumstances of the case, deletion of penalty was not justified. Therefore, my answer to the question ......... is that under the facts and circumstances of the case, learned CIT(A) was justified in confirming the penalty levied under section 271(1)(c) of the Act.... 3. The opinion so expressed by the Hon'ble Third Member 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 assessee, seeks adjournment on the ground that the quantum proceedings are pending before Hon'ble Gujarat High Court and are likely to come up 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 submitted 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 hi....
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....d Commissioner (DR), vehemently opposes these submissions advanced by the assessee. He submits that the valuable time of the bench is being wasted again and again even by causing delay in giving effect to the Third Member decision. He urges us to reject the request for yet another reference to Hon'ble President for constitution 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 which Hon'ble Member nominated as Third Member has been changed once and that, even 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 assessee. It is not the case that the decisions of the coordinate benches have not been followed without any reasons, according to the learned Commissioner (DR), but the learned Third Member, in a very erudite and detailed order, has given 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 reasoning of the Third Member is correct is something to be adjudicated by Hon'ble Courts above, and th....
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....hich arises directly in the present reference" 8. Viewed thus, a larger bench decision binds the bench of a lesser strength because of the plurality in the decision making process 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 not unanimous, is treated as intellectually superior to what two minds do together, and, by the same logic, what two minds do together is considered to be intellectually 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 members. Of course, when division benches itself also have conflicting views on the issues on which members of the division benches differ or when majority view is not possible as a result of a single member bench, such as in a situation in which 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 possibl....
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....he doctrine of stare decisis. Majority is a term signifying the greater number. Counting of heads underlies the theory of judicial precedents as in any majority decision. The constitutional requirement of a constitution Court of five judges is based on this theory. Similarly, the CPC, 1908, enacts that in the case of a difference of opinion, the matter has to be referred to a third judge. (see sec. 98, CPC). In my opinion, the reference was correctly made to me as the third judge. 9. However, before we address ourselves to the correctness of fundamental factual assumption underlying the contentions advanced by the learned counsel, that the decision of the learned Third Member 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 255(4), the division bench can take up any other issues, other than the simply implementing the majority views on the basis of the views already expressed by the division bench members and the third me....
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....rther directed the Tribunal to consider the decision of the ABG Heavy Industries and 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 relevant portion of the said order of Hon'ble jurisdictional High Court in ITA No.1307 of 2011 for A.Y. 2000-01 and 1640 of 2011 for A.Y. 2001-02 is as under: "1. Since the Tribunal has recalled the impugned order dated 23.03.2011, the appellant is withdrawing its appeal. 2. Further, while considering the matter afresh, the Tribunal will take into consideration all decisions including the decision of this court in the matter of CIT v. ABG Heavy Industries Ltd. reported in 322 ITR page 323. All contentions are kept open. 3. The appeal is dismissed of in above terms." 6. The issue before us is whether the Tribunal while complying with the provisions of section 255(4) of the Act can consider the judgment of the Hon'ble High Court in the case of ABG Heavy Industries. In light of the clear directions given by the Hon'ble Bombay High Court in the appeals filed by the assessee for the impugned assessment years inter alia directed the Tribunal ....