TMI Blog2015 (5) TMI 510X X X X Extracts X X X X X X X X Extracts X X X X ..... ievances with the majority view, the aggrieved party can seek appropriate remedy against the same. That situation will come only when the majority view is implemented 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 the 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 is that the learned CIT(A) was correct in confirming the impugned penalties of ₹ 54,82,239 and ₹ 34,90,015 in the case of Jupiter Corporation Services Ltd for the assessment year 1995-96 and 1996-97 and of ₹ 9,17, 680 in the case of Smt Sulochana V Gupta for the assessment year 1996-97. We, accordingly, confirm the same. - Decided against assessee. - I.T.A. Nos.: 2850 and 2144/Ahd/11, I.T.A. No.: 2145/Ahd/11 - - - Dated:- 24-4-2015 - Pramod kumar And S.S. Godara JJ. For the Appellant : Tushar P Hemani, For the Respondent : Subhash Bains, ORDER Per Pramod Kumar AM: 1. When these appeals were originally heard by the Tribunal, there was a difference between the Judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the earlier division benches, directly on the issue, in favour of the assessee. In case learned Third 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 matter 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 more than an opinion but our giving effect to such an opinion will result into an order of the Tribunal coming into existence but then this order will be directly contrary to the decision of Hon ble 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) 186 ITR 722(SC)], Pradip Chndar Parija Vs Pramod Chandra Patnaik [(2002) 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 Third Member order, the judicial precedent in the case of Sayaji Iron (supra) has been dealt with and distinguish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssions, perused the material on record and duly considered facts of the case in the light of the applicable legal position. 7. As Shri Hemani rightly points out, the legal position as it exists now, post Vallabhdas Vithaldas decision (supra) by Hon ble 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 bench. In coming to this conclusion, His Lordship Hon ble Justice Kureshi, who was himself sitting as a referral judge to express his views on a point on which the division bench had disagreed in this case, has, after an elaborate survey of judicial guidance and academic literature on this issue, concluded as follows: It can thus be seen that the law of precedent heavily relies on the collective decision making process where multiple legal minds are simultaneously applied assisted by legal research and presentation of legal arguments. When such materials and legal contentions are processed by several judges, the decision that is rendered even if not unanimous has the advantage of input from larger number of legally trained minds. In the present case, unlike a case of lar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the jurisdiction of Hon ble Gujarat High Court is concerned post Vallabhdas Vithaldas (supra) decision, but, even as we hold so, we are alive to the fact that Hon ble 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 Hon ble jurisdictional High Court. The approach adopted by the learned Third Member 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 Hon ble 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 referring to the third judge in the case of a difference of opinion between 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 thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e jurisdictional High Court on that issue, and the assessee did obtain a directions from the Hon ble High Court to take into account, inter alia, this judicial development as well. In the course of so giving effect to the majority views, the coordinate bench, inter alia, observed as follows: 4. While the said appeals are pending before the Hon'ble Tribunal to give effect to the opinion of the Third Member as per the 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 is contrary to the opinion given by the Third Member of the Tribunal. Meanwhile the appeal filed by the assessee against the order of the Tribunal dismissing 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 before the Hon'ble Bombay High Court the Counsel of the assessee brought to the notice of the Hon'ble High Court the fact that the Tribunal in the Miscellaneous Application filed by the assessee had recalled its order and the said matter w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Hon ble High Court to take into account the subsequent judicial developments by way of adjudication on the issue in appeal by Hon ble Courts above. The division bench has, taking note of these directions and indicating their limitations in the light of these directions, have specifically observed that the Tribunal is bound to follow the directions and we do so accordingly . If the division bench had the powers to take note of the subsequent judicial developments, post the expression of views by different members constituting the division bench and the third member bench, at the stage of giving effect to the majority view, there was no need to take note of Hon ble High Court s directions and state that this is because of the Hon ble High Court directions that the subsequent judicial developments are being taken note of. These directions were case specific and cannot be treated as a general interpretation of the scope of judicial work in the course of giving third member effect. No other judicial 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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