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Judgment
Rule
Miscellaneous Application No. 110 (Bom)/1992 arising out of ITA No. 6464/Bom/1991 was heard by the two Members of the Tribunal. After hearing the following final order was passed under s. 255(4) of the IT Act, 1961 :
Since there is a difference of opinion amongst us on the point at issue, the question, on which there is a difference, referred to the Hon''ble President for reference to a third Member as laid down in s. 255(4) of the Act :
''Whether, on the facts and circumstances of the case, there is a mistake apparent from record within the meaning of sub-s. (2) of s. 254 of the IT Act, 1961 requiring recall of the order dt. 5th May, 1992 in respect of ITA No. 6464 (Bom)/1991 ?''
Instead of making the reference to a Third Member as required under the provisions of the IT Act, the President of the Tribunal has passed a detailed administrative order holding that the order passed on Misc. Appln. cannot be treated as Third Member case and as no judicial order is called for in the matter, he has passed administrative order for the sake of clarification that the matter was not required to be referred to a Third Member.
Being aggrieved by the said order, the applicant of the Misc. application have filed this petition. It is contended by the learned counsel for the petitioners that once the issue is raised and referred to the President for making reference to a Third Member as laid down in s. 255(4) of the IT Act, the President has no option but to refer the said matter for decision to a Third Member. It is further contended that the President has no jurisdiction to decide it on administrative side that the matter was not required to be referred to a third Member.
In our view, the contention raised by the learned counsel for the petitioner requires to be accepted in view of the clear provisions of s. 255(4) of the IT Act.
In the result, this petition is allowed. The President of the Tribunal, Bombay, is directed to refer the issue raised by the two Members by their order dt. 13th Jan., 1993 (Exhibit ''C'' to the petition) to a third member for decision at the earliest.
The learned counsel for the petitioners further states that to avoid the allegations made in the administrative order passed by the President that only to delay the payment of penalty the petitioners are delaying the proceeding, the petitioner would deposit under protest Rs. 25,00,000 (Rupees Twenty five lacs only) with the ITO towards the penalty on or before 15th Aug., 1996.
Petition disposed of accordingly, No order as to costs.