TMI Blog1953 (3) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... lion at ₹ 4,50,000 and profit at 5 per cent. In the result, the Income-tax Officer added a sum of ₹ 12,800 to the income as disclosed by the books of account. The assessee took an appeal to the Appellate Assistant Commissioner but the appeal was dismissed. A further appeal was taken to the Income-tax Appellate Tribunal. The Judicial Member was of opinion that the Income-tax Officer was right in applying the proviso to Section 13, but the Accountant Member stated as follows: I am inclined to the view that in the circumstances of the case, the books should not have been rejected as has been done by the Income-tax authorities, but on the other hand should have formed the basis of the assessment with such adjustments as may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this appeal, we hereby refer the appeal to the President under Section 5A(7) of the Income-tax Act. The President heard the appeal and formed the opinion that the Income-tax Officer was right in taking recourse to the proviso to Section 13 of the Income-tax Act. The President however directed that in order to compute the profits of the assessee a rate of 3 per cent. should be applied to the sales of silver amounting to ₹ 2,04,545 and the rate of 5 per cent. to the sales of gold amounting to ₹ 2,34,344. According to this direction the amount to be added to the assessee's income as disclosed by the books was ₹ 8,143. At the instance of the assessee the Income-tax Appellate Tribunal has formulated the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y differ, and the case shall be referred by the President of the Tribunal for hearing on such point or points by one or more of the other members of the Tribunal, and such point or points 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. In the present case the two members of the Tribunal who heard the appeal in the first instance have failed to comply with the statutory provision that they shall state the point or points on which they differ before they make reference to the President of the Tribunal. This failure to comply with the requirement of Section 5A(7) is not a mere procedural defect nor is it a matter of mere formality but it is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the books of account. Section 5A of the Income- tax Act requires that if the members of the Tribunal are equally divided they should state the point on which they differ and the case shall be referred to the President of the Tribunal for hearing on such point by one or more of the other members of the Tribunal and such point 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. In the present case it is manifest that as regards quantum of assessment not only two members of the Appellate Tribunal but also the President have each of them taken a different view. It is manifest that there is no majority opinion in favour of any particular figu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rect interpretation of Section 5A(7) to divide the opinions of the members of the Tribunal into compartments and to make apportionment piecemeal of the figure of assessment which each of the members of the Tribunal has adopted. There is of course an obvious difficulty in applying the principle of the section in a case where there is difference of opinion between the members as regards quantum of assessment. In this respect there is a lacuna in the statute. But it is not the function of a Court to fill in the gap left in an Act of the Legislature, and to speculate with what material the legislature would, if it had discovered the gap, have filled it in. As Section 5A(7) stands at present, we think that the correct interpretation is that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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