TMI Blog2016 (5) TMI 957X X X X Extracts X X X X X X X X Extracts X X X X ..... are of the view that the said observations do not require any modification in terms of sec. 254(2) of the Act, as the appeals have been disposed of by the Special bench strictly in accordance with the provisions of sec. 255(4) of the Act. Hence we are of the view that the order passed by the Special Bench does not require rectification in terms of provisions of sec. 254(2) of the Act nor it curtails the right of the revenue to contest the orders passed by the Tribunal in accordance with the majority view in terms of sec. 255(4) of the Act by filing appeals before the Hon’ble High Court. The revenue contention that it had argued against the constitution of Special Bench and the same was not considered by the Special Bench, the matter relating to the constitution of Special Bench is required to be represented before the Hon’ble President, who had constituted the same and hence, even if the Revenue had argued against the same during the course of hearing before the Special Bench, the said contentions could not have been taken cognizance of by the Special bench. Accordingly, we are of the view that this contention of the revenue also does not give rise to any mistake apparent from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and manner in which the issues should be decided. The said section reads as under:- 255(4) If the members of a Bench differ in opinion on any point, the point shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ, and the case shall be referred by the President of the Appellate Tribunal for hearing on such point or points by one or more of the other members of the Appellate Tribunal, and such point or points shall be decided according to the opinion of the majority of the members of the Appellate Tribunal who have heard the case, including those who first heard it. Accordingly, the Hon ble Third member expressed his views on the points referred to him, vide his order dated 27-11-2009, and placed the same before the regular bench for passing appropriate orders in accordance with the law. 4. Accordingly, the order of the Third member was placed before the division bench to dispose of the points according to the opinion of the majority of the members who have heard the matter. The events that happened subsequent thereto have been narrated as u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase . 10. The Ld. Judicial Member has expressed his disagreement with the course adopted by the Ld. Accountant Member and in a note dated 23.2.2010 has proposed the following question to be referred to the Special Bench or Larger bench to resolve the controversy. Whether on the facts and circumstances of the case, the Members of the Bench, could comment on the order of the Third Member, instead of passing a confirmatory order in terms of section 255(4) of the Act?. 5. It can be noticed that the division bench did not pass the order to give effect to the order of the Hon ble Third Member, i.e., to decide the points according to the opinion of the majority of the members. It can be noticed that the Hon ble Accountant Member, vide his order dated 18-02- 2010, chose to refer the matter again to the Hon ble President with further questions relating to merits/power. However, the Hon ble Judicial Member took the view that such course of action is not permissible at that stage and accordingly he framed the question referred above. 6. Since the difference of opinion between the members constituting the division bench arose at the stage of implementation of the order passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that he took a decision that the same special bench shall dispose of the appeals on the basis of majority view. Hence the Special Bench proceeded to dispose of the appeals pertaining to assessment years 2004-05 and 2005-06 with the following observations:- 56. At the time of hearing, with the consent of the parties and in the interest of justice, it has been decided by the Hon ble President to finally dispose of the appeals on the basis of majority view. Therefore, based on the opinion of the majority, the ground wise decision of the appeals for the assessment years 2004-05 and 2005-06 is as under: Accordingly the Special bench disposed of the appeals by deciding all the issues on the basis of majority view. 9. Subsequently, the revenue has filed these miscellaneous petitions and the same reads as under:- 1. The Hon'ble Income Tax Appellate Tribunal, Mumbai Special Bench E , Mumbai passed an order dated 30.03.2012 in ITA Nos. 6490 and 6491/Mum/2008 for A.Ys. 2004-05 2005-06, filed by M/s. Tulip Hotels Pvt. Ltd. 2. Aggrieved by the order of the Hon'ble ITAT, Special Bench E Mumbai, the present miscellaneous application is filed on the facts and cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout appreciating the fact that the Ld. Third Member omitted to consider the audit report that the assessee had declared the income on the net basis and the expenses had therefore been claimed and once the income had been shown on net basis, the expenses could not be expected to appear in the P/L account. The above omission of fact by the Ld. Third Member was specifically brought on record and into the notice of the Hon'ble Special Bench by the Ld. Accountant Member in Para 4 of his order referred above and in question No. 3 referred by him (finding place in Para 9 of this order). (iv) in Para 38, by recording that as per Ld. Accountant Member the Ld. TM is required to restore the additional evidences filed before him/tribunal to the file of the AO for fresh adjudication after examining the said evidence and after providing reasonable opportunity of being heard to the assessee , which is contrary to the fact that the Ld. Third Member was himself of opinion that the addition evidences filed by the assessee was required to be restored to the AO for fresh consideration, and observed in Para 5 of his order, as under: . In principle I agree with the learned DR that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment was also specifically argued/pointed out by the Ld. DR, finding place in Para 21, 22, 24, 25, 26 27 of the order. (vii) in Para 56, by recording that with the consent of the parties and in the interests of justice, it has been decided by the Hon'ble President to finally dispose of the appeals on the basis of majority view. which is contrary to the fact that the department had never given any such consent and the ld. DR had argued against the constitution of the Special bench, which was not even considered. **8. In view of the above, it is humbly prayed that the Hon'ble ITAT Special Bench E may recall its earlier order dated 30.3.3012 and call for remand report from AO in ITA Nos. 6490 and 6491/Mum/2008 for A.Y. 2004-05 and 2005-06 for rectification of the apparent errors of facts therein and the conclusion based thereon and modify its order accordingly. (** In the petition the paragraph next to paragraph 5 has been numbered as paragraph 8) 10. Since the Miscellaneous petitions have been filed against the orders passed by a Special bench, the Hon ble President constituted a bench of equal strength to hear these petitions. During the course of heari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that the Ld D.R had argued against the constitution of special bench itself and the said arguments were not considered. He further submitted that the Tribunal has got a duty to consider all the case laws on the subject, even if they have not been quoted before it, while disposing of the appeals. He submitted that nonconsideration of various important case laws available on the impugned matter has resulted in a mistake apparent from record. He further submitted that the revenue has pointed out various types of mistakes in paragraph 5(ii) to 5(vi) of the petition, which affect the outcome of the grounds raised in the appeals before the Tribunal. Accordingly he contended that the order of the special bench should be recalled. 12. On the contrary, the Ld A.R submitted that Special bench was constituted by the Hon ble President in order to decide the legality of the order passed by the Hon ble Accountant Member while giving effect to the order passed by the Hon ble Third Member, since the Hon ble Judicial Member has expressed the view that the course adopted by the Hon ble Accountant member was not in accordance with the mandate of the the provisions of sec. 255(4) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bservations made by the Special bench upto paragraph 55 of the order relate to the question posed before it and we have already noticed that the same was not related to the grounds raised in the appeals that were pending before the Tribunal, but related to the legality of the order passed by the Hon ble Accountant Member u/s 255(4) of the Act. In the miscellaneous petition, the revenue is alleging that certain mistakes have crept in, in paragraph 37, 38, 51 and 52 of the order (referred to in paragraph 5(ii) to 5(vi) of the miscellaneous petition). In our considered view, all the observations made by the Tribunal in the above said paragraphs relate to the question posed before it and the same do not relate to the grounds raised in the appeals that were pending before the Tribunal. Hence, the said observations do not affect the grounds raised in the appeals and accordingly the argument taken by the ld. DR that the alleged mistakes pointed out in the paragraphs referred above as affecting the appeals is misplaced. Accordingly, we do not find any merit in them. 15. The revenue has pointed out in paragraph 5(i) of its petition that the order dated 18-02-2010 passed by the Hon ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, it has been decided by the Hon ble President to finally dispose of the appeals on the basis of majority view .. Accordingly, as per the decision taken by the Hon ble President in the interest of justice, the Special bench proceeded to dispose of the appeals in accordance with the provisions of sec. 255(4) of the Act. Thus, the order dated 30.03.2012 passed by the Special bench disposing the appeals on the basis of majority view does not hinge on any consent before it, but on the decision of the then Hon'ble President, which is stated to be on a consent; and, in any case, it does not suffer from a mistake within the scope and ambit of section 254(2) of the Act, as our subsequent discussion would show. 17. It is pertinent to note that the provisions of sec. 255(4) is very clear with regard to the manner of disposal of appeals when there is difference of opinion between the members, i.e., the points of difference shall be decided according to the opinion of the majority of the members of the Tribunal who have heard the case, including those who first heard it. Hence the Tribunal is required to dispose of the appeals in accordance with the mandate of the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19. The Ld D.R has contended that the Special bench Tribunal should have considered certain decisions of Courts, even it had not been quoted by the revenue before the Special bench. This contention, in our view, is beyond the scope of petition and even if it is accepted for a moment, the same would give rise to unending litigation of any matter before any forum. Further, the power given to the Tribunal u/s 254(2) of the Act is confined to the correction of mistakes apparent from record and the Tribunal is not entitled to review its own order under the garb of rectification of mistakes apparent from record. The above said contentions of the Ld D.R would result in review of the order passed by the Special bench in accordance with the majority view of the members. Accordingly, we decline to entertain the said contentions of the Ld D.R. 20. In view of the foregoing discussions, we are of the view that there is no merit in the petitions filed by the revenue. Accordingly we dismiss both the miscellaneous petitions filed by the revenue. 21. In the result, both the miscellaneous petitions filed by the revenue are dismissed. Order was pronounced in the Open Court on 12.4.2016 in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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