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Judgment
Ramanujam, J.—W.P. No. 905 of 1978 has been filed by the Income Tax Officer, Company Circle II(1), Madras, for the issue of a writ of
certiorari to quash the order of the Vice-President, Income Tax Appellate Tribunal, Madras, dated January 31, 1978, on the ground that he has
exceeded his jurisdiction under s. 255(4) of the I.T. Act, 1961 (for short the ""Act""). W.P. No. 3138 of 1978 has been filed by the assessee for the
issue of a mandamus directing a fresh and de novo disposal of its appeal filed before the Income Tax Appellate Tribunal and W.P. No. 3152 of
1978 is one for the issue of a writ of certiorari to quash the orders passed by the two members of the Tribunal and the Vice-President, the third
member, in its appeal.
The circumstances under which these writ petitions came to be filed may be briefly set out. The assessee sold an extend of 26.01 acres of land
to the Government of India on March 28, 1970 for a sum of Rs. 23,40,000. After deducting the assessee''s cost of Rs. 1,06,855, the capital gains
arising out of the said sale was determined by the ITO at Rs. 22,33,145. Before the ITO, the assessee claimed exemption in respect of the entire
sum of Rs. 22,33,145 on the only ground that the lands were sold as agricultural land and, therefore, the sale will not attract the levy of tax under
the head ""Capital gains"". The ITO rejected that claim of the assessee. Therefore, the assessee went before the AAC but without success.
Thereafter, the assessee went before the Tribunal. However, before the Tribunal, two contentions were put forward by the assessee. One was that
the lands sold being agricultural lands, the sale will not attract the levy of capital gains. The second was that even if the levy of capital gains is
exigible on the ground that the lands sold are non-agricultural lands, still, capital gains has to be computed taking the date of conversion of the
agricultural land into non-agricultural land as the basis. So far as the first question is concerned, the Tribunal which consisted of a judicial member
and an accountant member held that on the materials on record, though the lands were originally acquired as agricultural lands, when they were
sold, they were non-agricultural land and that, therefore, such sale of non-agricultural land would attract the levy of capital gains. However, the two
members of the Tribunal differed on the mode of computation of the capital gains. The judicial member took the view that the capital gains must be
computed taking the original date of acquisition of agricultural land as the basis. The accountant member, however, disagreed with that view and
held that the date of conversion should be taken as the basis for computation of the capital gains. In view of the difference of opinion between the
two members of the Tribunal on the mode of computation of the capital gains, they framed the following question and forwarded the same to the
President for reference to a third member :
Whether, on the facts and in the circumstances of the case, the capital gains assessable for the assessment year 1971-72 would be Rs. 22,33,145
or any lesser amount ?
The President had referred the said question to a third member, Thiru D. Rangaswamy, the then Vice-president of the Income Tax Appellate
Tribunal, Madras. Before the third member, the counsel for the assessee raised three additional points which were not urged before the two
members of the Tribunal or before any of the lower authorities and those points were : (1) A circular issued by the Central Board of Direct Taxes
dated August 1, 1969, clarifying the expression ""cost of acquisition of the capital asset"" throwing light on the mode of computation of the capital
assets has not been considered by the two members of the Tribunal; (2) that the lands which are mainly used for removing clay for the manufacture
of brick should be taken to be the stock-in-trade and the sale of such a stock-in-trade cannot attract the levy of capital gains; (3) that the sale
having taken place on March 28, 1970, the sale fell within the assessment year 1970-71 and outside the previous year, and capital gains being a
separate source of income, a separate previous year should be adopted. The third member after hearing the parties at length on the question
referred to him, as also on the additional points referred to above, felt that the matter should be reconsidered by the two members of the Tribunal.
In that view, the third member remitted the matter back to the original Bench which heard the appeal first to consider primarily the application of
the circular of the Central Board of Direct Taxes referred to above and also whether the land sold was capital asset throughout the period between
the date of purchase and the date of sale. The validity of this order has been challenged by the Department in W.P. No. 905 of 1978 mainly on the
ground that the third member has no jurisdiction to remit the matter for fresh consideration to the original Bench as such a power is not conferred
on the third member under s. 255(4) of the Act. Having regard to the nature of the order passed by the third member, from which one cannot
decide as to what is the majority opinion of the Tribunal, the assessee contends that there is a complete deadlock and, therefore, according to the
assessee, the orders of the two members of the original Tribunal as also of the third member may be quashed and a direction may be issued for a
de novo hearing of its appeal filed before the Tribunal. It cannot be disputed that the jurisdiction of the third member springs from s. 255(4) of the
Act and he has no other power inherent or otherwise. Section 255(4) of the Act is to the following effect :
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.
Admittedly, in this case, the President of the Appellate Tribunal has referred the matter to the third member (Thiru D. Rangaswamy) the hear on
the point or points on which the two members of the Tribunal had differed and on the third member giving his decision on the point or points
referred to it, the appeal should be taken to have been decided by the opinion of the majority of the members of the Appellate Tribunal who have
heard the case including those who first heard it. Thus, the power of the third member to whom the case is referred is confined to giving of a
decision on the point on which the members had differed and which has been formulated by them, as a question of a third member. In this case, the
third member has proceeded on the basis that the question referred by the two members of the Tribunal is wide enough to enable the assessee to
raise additional points and, therefore, the additional points pressed by the assessee should be considered. Even so, we are of the view that the third
member should have pronounced his opinion on the point of difference as also on the additional points raised by the assessee. But without doing
so, the third member has remitted the matter to the original two members of the Tribunal for a fresh decision. We are of the view that the third
member who is functioning under s. 255(4) of the Act does not have such a power as to direct the two members of the Tribunal who had differed
on the point referred to the third member, to decide a particular point or act in a particular manner. Such a power vests only with an appellate or
revisional authorities, if there are any. The power of the third member to whom the points of difference have been referred cannot act as if it were
an appellate authority over the two members of the Tribunal and direct them to rehear and dispose of the matter afresh. No doubt, the third
member, in this case, happened to be the Vice-president. But that will not clothe him with the power to give directions or remit the matters while
functioning under s. 255(4) of the Act. The learned Advocate-General appearing for the assessee would say that s. 255(4) of the Act should be
read in conjunction with s. 254(1) of the Act which deals with the powers of the Appellate Tribunal. According to him, the third member to whom
the points of difference have been referred, should be taken to have all the powers of the Tribunal under s. 254(1) and as such the Tribunal can
pass such orders as it thinks fit. Therefore, the third member has got the power to pass any order as he thinks fit. The submission of the learned
Advocate-General is in direct conflict with the language and the object behind s. 255(4) of the Act. When s. 255(4) says that the third member
shall decide the points of difference referred to him and the decision of the Tribunal will be as per the majority opinion, the third member is
expected to give his decision, whatever it is, so that the majority opinion could be determined for the purpose of disposal of the appeal before the
Tribunal. If, based on the language of s. 254(1) of the Act, we were to hold that the third member can pass any order he likes, then such an order
will not serve the purpose for which s. 255(4) of the Act was introduced in the statute book. It is well established that the provisions of the Act
have to be construed harmoniously so as to give effect to all the provisions of the Act and to carry out the objects sought to be achieved by the
various statutory provisions. In this case, the third member has not chosen to give his opinion one way or the other either on the point of dispute,
i.e., on the mode of computation of the capital gains or on the new points urged by the assessee before him. If the third member has entertained the
new points and has given his opinion one way or the other, as also on the point of dispute referred to it, it can be said that he has acted within his
jurisdiction, though it may be open to the Revenue to contend before the appropriate forum that the third member should not have entertained the
new points which were not urged before the two members of the original Tribunal. In this case, as already stated, without giving his decision on any
of the points, the third member has merely remitted the matter to the two members of the Tribunal for a fresh consideration on all the points. We
do not see how the third member to whom the point of dispute is referred under s. 255(4) can claim to have any larger power than the two
members who originally constituted the Tribunal. The third member has no higher power or jurisdiction than the members who originally constituted
the Tribunal, and, therefore, the remit order directing them to rehear the matter will be clearly outside the jurisdiction of the third member. Hence,
we cannot sustain legally the order of the third member, in this case, remitting the matter to the two members of the original Tribunal without
expressing any opinion on the question which he had to consider. Therefore, W.P. No. 905 of 1978 is allowed and the order of the first
respondent therein dated January 31, 1978, will stand quashed. The result is that the original reference referring the point of dispute should be
taken to be pending and that has to be disposed of as per law. In this case, we find that the third member (Thiru D. Rangaswamy) is no longer in
service and, therefore, he is not in a position to hear the reference. In view of this peculiar situation, the President will nominate or empower any
other member of the Tribunal to hear the reference and give his opinion on the points of dispute.
Coming to the other two writ petitions, we find that these writ petitions have been filed on the basis that there is a deadlock in view of the order
passed by the third member from which it is not possible to find out as to what is the majority opinion of the Tribunal in the appeal filed by the
assessee challenging the assessment of the capital gains. The main contention urged by the writ petitioner is that the order of the third member does
not contain his opinion, one way or the other, and, therefore, it is not possible to determine as to what is the majority opinion, and since as a result
of the order of the third member, the appeal filed by the assessee before the Tribunal cannot be disposed of, it is just and equitable that this court
should direct a de novo hearing of the appeal by the Tribunal. But, we have already held that the order passed by the third member expressing no
opinion on the points of dispute cannot legally be sustained. We have, in fact, quashed the order of the third member on the ground that the order
has been passed in excess of his jurisdiction. As a result of that order, a fresh decision has to be rendered by a third member on the points of
dispute and the petitioners'' appeal before the Tribunal will be disposed of according to the opinion of the third member taken in conjunction with
the opinions expressed by the original two members of the Tribunal. The learned Advocate-General would contend that even after the third
member has given his opinion, it is not possible to find out the result of the appeal which has to be decided by a majority of the opinion expressed
by the three members and, therefore, a direction to dispose of the matter afresh by the Tribunal should be given. But, as stated already, the third
member has not given his decision or opinion but he has merely remitted the matter back to the Tribunal. That order cannot be said to be an
opinion or decision as contemplated by s. 255(4) of the Act. Only if the third member expressed his opinion one way or the other and that opinion
does not fit in with the opinion of either of the members of the Tribunal, then a deadlock should be taken to have occurred, but, at this stage, we
cannot say that there is any deadlock when the third member has merely passed an order remitting the order back to the Tribunal without giving his
decision or opinion in the matter. We, therefore, do not see any justification for quashing the opinion expressed by the two members of the
Tribunal or for giving a direction to hear the assessee''s appeal de novo by a different Tribunal as prayed for by the petitioners. The writ petitions
filed by the assessee are, therefore, dismissed. There will be no order as to costs in any of the writ petitions.