TMI Blog1962 (9) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... e case, there was an order of the Tribunal as contemplated by section 33(4) of the Income-tax Act read with rule 33(1) of the rules framed thereunder? According to the statement of the case, this question arises in the following circumstances: In respect of the assessment year 1945-46, the assessee, at whose instance this reference has been made, filed two appeals, one under section 33 of the Act and the other under section 14(1) of the Excess Profits Tax Act, to the Tribunal in respect of certain disallowances made by the Income-tax Officer and affirmed by the Appellate Assistant Commissioner. The appeals, being connected, were heard together on October 28, 1952. On October 31, 1952, the Accountant Member of the Tribunal dictated a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date on which such order is communicated to him. (2) The Commissioner may, if he objects to any order passed by an Appellate Assistant Commissioner under section 31, direct the Income-tax Officer to appeal to the Appellate Tribunal against such order, and such appeal may be made within sixty days of the date on which the order is communicated to the Commissioner by the Appellate Assistant Commissioner. (2A) The Tribunal may admit an appeal after the expiry of the sixty days referred to in sub-sections (1) and (2) if it is satisfied that there was sufficient cause for not presenting it within that period. (3) An appeal to the Appellate Tribunal shall be in the prescribed form and shall be verified in the prescribed manner, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h concurring, judgments. A Tribunal cannot be distinct from the Members who constitute it. It can express itself only through its Members. No one else has a right to speak on behalf of the Tribunal. Therefore, so long as the Members of the Tribunal consider the matter and adjudicate upon it, it would make no difference that instead of there being an order on behalf of both of them, they passed two separate, though concurring, orders. There is nothing in the language either of section 33 or rule 2 or rule 33 which would justify the conclusion that it is not open to them to write separate judgments. What is necessary in the case of a court or Tribunal consisting of more than one judge or member is that they should collaborate amongst themselv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmission that in any case there should have been an order on behalf of the whole Tribunal, like our Per Curiaem or By the Court orders, which are different from the opinion of the individual judges who constitute the bench hearing a case and inasmuch as no such order was prepared, there is no order of the Tribunal in the eye of the law, in our view, is equally untenable. It is not necessary that in a case where the conclusion of both the Members is the same, there should be a separate order on behalf of the Tribunal. The matter would have been different if they had disagreed and the case was referred to the President. Even in this court quite often when the judgments, though separate, are concurrent and the conclusion is the same, a sep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the provisions and the material danger to the public by the contravention of the same. In Rani Drig Raj Kuer v. Raja Amar Krishna Narain Singh [1960] 2 S.C.R. 431; A.I.R. 1960 S.C. 444, it was pointed out that the difference between a directory and a mandatory provision lies in the fact that the disobedience of the law in the former case does not invalidate the order but in the latter case it does. In view of the fact that the two Members had adjudicated upon the matter, had pooled their minds together, had come to the same conclusion and had given separate judgments which were properly sealed and signed, the mere absence of a formal order on behalf of the Tribunal would, if at all, affect the form and not the substance. At best it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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