TMI Blog2004 (1) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... s fit to exercise the powers and discharge the functions conferred on the Appellate Tribunal. The said provision lays down the qualification of a judicial member and an accountant member. The President of the Tribunal is to be appointed ordinarily from the judicial member of the Tribunal. The Central Government is also authorised to appoint one or more members of the Appellate Tribunal as Vice-President and in the event there are more than one Vice-Presidents, it may appoint a Senior Vice-President. The Senior Vice-President or a Vice-President may be delegated by the President such functions of the President as may be delegated to him by a general or special order in writing. Several notifications have been issued whereby and whereunder the President, Income-tax Appellate Tribunal, delegated the powers to Vice-Presidents. Sub-section (1) of section 255 provides that powers and functions of the Appellate Tribunal may be exercised and discharged by Benches constituted by the President of the Appellate Tribunal from amongst the members thereof. Sub-section (5) of section 255 reads thus: "Subject to the provisions of this Act, the Appellate Tribunal shall have powers to regula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consensus as regards the extent of the power as also the guidelines therefor so as to enable the President to discharge the said functions. The Union of India in an affidavit filed on February 16, 2001, suggested the following guidelines: "1. Upon appointment of a Member, his initial posting will be done by the Government in consultation with the President, Income-tax Appellate Tribunal, having regard to the following: (i) A Member shall not be given initial posting at a place where he was earlier practising as an advocate or chartered accountant in taxation matters as the case may be; (ii) A member shall not be posted at a place where his spouse, son, daughter, grandson or granddaughter is practising either as an advocate or chartered accountant in taxation matters. 2. The transfers shall be made by the Government on the advice of the President, Income-tax Appellate Tribunal, ordinarily having regard to the following guidelines: (i) A Member shall not be posted at a place for a period exceeding five years; (ii) A Member shall not be posted at a place where his spouse, son, daughter, grandson or granddaughter is practising as an advocate or chartered accountant in taxat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Benches exercises both his judicial and administrative powers. While the President exercises administrative jurisdiction even no writ petition would be maintainable thereagainst. The position of the Appellate Tribunal is the same as of a court of appeal under the Civil Procedure Code and its powers are identical with the powers enjoyed by the appellate court thereunder. In any event, the Central Government cannot usurp the power of the President in purported exercise of its functions under the delegation of the financial powers rules which were issued only for certain purposes. The submission of the respondent on the other hand are: (1) The Central Government has the necessary administrative control over the Tribunal having regard to the power to constitute the same; (2) The power of appointment of a member of the Tribunal would include a power of his transfer and posting; (3) Such a power of the Central Government is implicit from the scheme of the Act. There are a large number of instances where such a power of the President has been misused and having regard thereto, the impugned decisions had been taken. The Income-tax Appellate Tribunal exercises judicial functions an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affected by it, the injustice resulting from its departure and the approval that it has received in judicial decisions or in legislation. In Francis Bennion's Statutory Interpretation, fourth edition, the law is stated in the following terms at page 596; "Section 231: The basic rule: In the period immediately following its enactment, the history of how an enactment is understood forms part of the contemporanea expositio, and may be held to throw light on the legislative intention. The later history may, under the doctrine that an ongoing Act is always speaking, indicate how the enactment is regarded in the light of developments from time to time. COMMENT On a superficial view, it may be thought that nothing that happens after an Act is passed can affect the legislative intention at the time it was passed. This overlooks the two factors stated in this section. Contemporanea expositio: The concept of legislative intention is a difficult one. Contemporary exposition helps to show what people thought the Act meant in the period immediately after it was passed. Official statements on its meaning are particularly important here, since every Act is supervised, and most were or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idelines could serve the said purpose: (i) Initial posting of a member shall be done by the Government in consultation with the President of the Income-tax Appellate Tribunal. (ii) Postings to different Benches shall be done by the President having G regard ordinarily to the following: (a) A member save and except for sufficient and cogent reasons shall not be posted at a place where he had earlier been practising as an advocate or a chartered accountant, as the case may be. (b) A member may not be posted at a place where any of his parents, H spouse or other close relation is practising as an advocate or a chartered accountant in taxation matters. (c) Save and except for sufficient and cogent reasons, the Member shall not be posted at a place for a period exceeding five years. Ordinarily, a Member may not be posted at a place where he was earlier posted unless a period of two years has elapsed. (iii) The President shall keep the Government informed about the orders of posting. The Government, if it so thinks fit, shall have the liberty to bring to the notice of the President, Income-tax Appellate Tribunal, relevant facts including that transfer and posting of a member ..... X X X X Extracts X X X X X X X X Extracts X X X X
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