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TMI Blog2017 (1) TMI 1456X X X X Extracts X X X X X X X X Extracts X X X X ..... o answer those questions in his own way or decline to answer some of those questions, and due to lack of clear answers given or some questions remained unanswered by Third Member, was it open to the Regular Bench to hear the matter and decide the appeal afresh, in the manner it likes without deciding the matter in the light of majority of opinion of the Bench ?" 2. Since we are considering the procedure followed by the Tribunal in deciding appeals, pending before it, filed by the Revenue, as well as the assessee, we are not entering into merits of the matter. 3. There appears to be a difference of opinion between two Members of the Bench as a result whereof the following seven questions were referred to the Third Member for his opinion. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of different High Courts (no dispute about Supreme Court case law) not cited by either side during the hearing of the appeals ? (7) Whether if adoption of mercantile system is upheld, the questions of discounting and application pro rata in respect of deduction towards prize liability under the 'Golden Key Scheme' should go back to the Regular Bench for its decision, considering that the Accountant Member has not adjudicated on these aspects ?" 4. Third Member declined to answer questions-5 and 6 and remaining questions were answered, some categorically, and some, in a vague manner. In view of this kind of opinion rendered by Third Member, when the matter again went to the Regular Bench, it found it difficult to decide appeals o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he President of the Appellate Tribunal and such point or points thereafter shall be decided according to the opinion of majority of Members, who have heard the case including those who first heard it. In the present case, two Members initially differed in their views and formulated 7 points. A single Member was constituted to hear those points. Such member has no other option but to answer those points and thereafter the decision of the Tribunal has to be given by the Regular Bench in the light of majority opinion, i.e., 2-1 and not by deciding the entire matter after re-hearing the case afresh. The Bench to which the matter comes after the opinion of the referred Bench, had to decide the matter on majority of opinion already available and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of accounting adopted by the assessee as the entries in accounts are correct and complete on the basis of which correct income chargeable to tax can be computed. 11. Question No. 4 was also answered in affirmative. 12. Questions Nos. 3 and 7 were taken together and without giving any answer deciding the same in one or other way, it observed that both these questions are decided in the light of observations. The entire observations made in respect to Questions Nos. 3 and 7 read as under : "Questions Nos. 3 and 7 20. These questions are again closely related. The assessee in this case received a deposit of Rs. 2,500 out of which Rs. 1,000 was given to the account holder in the form of N.S.C. The balance of Rs. 1,500 has been treated as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision of two differing Members and observed that they have not looked into the relevant circumstances and should re-decide ground of appeal after giving opportunity to both the sides. The Third Member, it appears, forgot his position that he was not sitting in appeal over the opinion rendered by two Members of the Tribunal since jurisdiction of Third Member was co-ordinate and it was his duty to hear the two sides and decide question referred for its opinion in one or other way and not to make comments in the manner in which two differing Members have rendered their opinion for deciding certain issues. Unfortunately, Third Member has looked into question No. 5 as if he was sitting in appeal over different opinions recorded by two Members ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order under section 255(4) of the Act. We are supposed to pass the final order as per majority but we are having three orders out of which the two initial orders are of Members, which constituted the Bench and naturally both of them were having their reservations/differences on some points, which were ultimately referred to the hon'ble Senior Vice-President, but facts remain that the hon'ble Senior Vice-President, the Third Member instead of agreeing with either of the Member, who passed the dissenting order had reopened the same issues afresh implying the fresh disposal of the appeals by this Bench. Under these circumstances, this order under section 255(4) of the Act is passed to the effect that appeals of the assessee/Department ..... X X X X Extracts X X X X X X X X Extracts X X X X
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