ORDER
R.S. Syal, A.M.
In confirmity with the majority of the members of the Income Tax Appellate Tribunal, who have heard these cases, for the reasons cited in the orders, we adjudicate the issues apropos of the points of difference in favour of the assessee.
2. The learned counsel for the assessee sought permission to raise the following additional ground of appeal :
“That on the facts and in the circumstances of the case and in law, the assessment order passed by the learned assessing officer under section 158BC of the Income Tax Act, 1961 on 28-1-1999 is barred by limitation as per provisions of section 158BE(1)(a) and as such the same is liable to be quashed.”
It was stated that the aforesaid additional ground was also raised before the Third Member at the time of hearing before him, but the same was not allowed to be raised at that stage.
3. In support of the arguments for the admission of additional ground before this Bench, it was stated that the appeals were originally fixed for hearing from time to time and eventually the hearing was concluded by the Division Bench. Before the assessee could become aware about the difference of opinion between the members, the above ref erred additional ground was legally raised. It was further explained that when the case was taken up for hearing by the Hon’ble Vice President, acting as Third Member, the assessee drew his attention to the pendency of the additional ground, but the same was not admitted on the ground that his power was limited to the questions referred to him under section 255(4) of the Act. The learned counsel for the assessee contended that he has raised a legal ground, which goes to the root of the dispute, and its adjudication is paramount for the disposal of the entire decision. He referred to the Third Member order passed in the case of Goodyear India Ltd. v. ITO (2000) 73 ITD 189 (Delhi) to contend that the additional ground can be raised at this stage. He commended us to various decisions including national Thermal Power Co. Ltd. v. CIT (1998) 229 ITR 383 (SC), Shilpa Associates v. ITO (2003) 263 ITR 317 (Raj) and J.S. Parkar v. V.B. Palekar (1974) 94 ITR 616 (Bom) to bring home the point that the additional ground can be validly raised at this juncture. In the opposition, the learned Departmental Representative relied on the Third Member order passed in assessee’s own case in which the similar attempt, made on behalf of the assessee to raise the additional ground, was thwarted.
4. We have heard the rival submissions and perused the relevant material on record in the light of the precedents cited before us. There is no dispute about the fact that these appeals were heard by the Division Bench on 29-1-2003 and the assessee came out with the additional ground on 5-11-2003 i.e. after elapse of around 10 months from the conclusion of hearing. Equally, there is no dispute about the other fact that the additional ground was raised prior to the intimation to the assessee about the difference of opinion between the members who heard the appeals. When the Hon’ble Vice President heard the points of dispute, the additional ground raised by the assessee was not entertained as it was opined to be not relatable to the questions of dispute between the members who originally heard the appeals. Now, the proceedings before us are open under section 255(4) of the Act, namely, in giving effect to the order passed by the Third Member settling the controversy between the two members, who originally heard the appeals. In order to appreciate the contention raised by the learned Authorised Representative that the additional ground raised after the conclusion of hearing by the Division Bench be entertained, it is sine qua non to consider the relevant provision of section 255(4), which reads as under :
“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 art 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.”
A bare perusal of this sub-section reveals that the jurisdiction of the Bench is confined to deciding the points of difference of opinion by the majority view. This sub-section does not empower the Tribunal to consider any additional ground raised by any of the parties after the conclusion of the original hearing. The scope of the present proceedings is limited and confined only to pass consequential order after considering the opinion expressed by the three members including the Third Member who heard the points of dispute and settled the same.
5. At this stage it would be apt to take note of the provisions of Chapter XXB of the Income Tax Act, 1961, namely, the appeals to the Appellate Tribunal. Section 253 entitles both the assessee and the revenue, aggrieved by the specified orders, to appeal to the Income Tax Appellate Tribunal in the prescribed form and within the specified time. Section 254(1) deals with the passing of the orders.
The provisions for passing rectification orders by the Tribunal are contained in section 254(2). Section 255(4) is enshrined to settle the difference arising between the members who heard the appeal. After expression of opinion by the Third Member, a consequential order is passed under section 255(4) to give effect to the majority view expressed by the members including those who originally heard the appeal. The passing of orders under section 254(1) and section 255(4) are two separate things. A line of distinction is required to be drawn between the scope of jurisdiction and powers coupled with the duties of the Tribunal at the time of passing orders under both these sections, which are like two different airtight compartments. Section 254(1) provides that the Tribunal may after giving both the parties to the appeal an opportunity of hearing, pass such orders thereon as it thinks fit. The powers and jurisdiction of the Tribunal in passing orders under this section is set in widest amplitude. There are no fetters on the power of the Tribunal to entertain any additional legal ground, which is raised for the first time before it. The learned Authorised Representative has strongly relied on the judgment rendered in the case of National Thermal Power Co. Ltd. (supra) to bolster his submission that the additional ground raised be admitted. In this case, the Tribunal declined to admit the additional ground raised before it on the view that it was confined only to the issues arising out of the appeal before the learned Commissioner (Appeals). This was held by the Hon’ble Supreme Court to be too narrow a view by ordering that the Tribunal under section 254 of the Act has jurisdiction to examine a question of law which arises from the facts as found by the authorities below and having a bearing on the tax liability of the assessee notwithstanding the fact that the same was not raised before the lower authorities. It is clearly borne out that this decision was rendered in the context of section 254 of the Act. The decision of the Hon’ble jurisdictional High Court in the case of Shilpa Associates (supra) is also confined to its own facts in which it was held that the Tribunal cannot decline to admit the additional ground i.e. amendment in the Memo of Appeal, on the ground of limitation for filing the appeal. It was opined that the limitation under section 253(3) is provided only for the purpose of filing of the appeal and once the appeal is filed within time, the Tribunal cannot decline to admit the additional ground on the ground of limitation. It is easily discernible that the facts and circumstances of that case are nowhere near the factual matrix of the instant case. This decision, in our considered opinion, does not advance the case of the assessee any further. The other decisions relied upon by the learned Authorised Representative are also found to have been rendered in the context of the provisions of section 254(1) of the Act. A common thread running through the relevant judicial pronouncements heavily relied upon by the learned Authorised Representative is that the additional ground can be raised before the Tribunal at the time of hearing under section 254.
6. On the contrary, the scope of the proceedings under section 255(4) is confined only to the giving effect to the majority view qua the items, which were the subject-matter of dispute between the members who originally heard the appeal. On all aspects other than such point(s) of difference, the original order passed by the Division Bench becomes conclusive. The jurisdiction under this section 255(4) cannot be stretched so far as to include in its sweep, the issues beyond the ambit of point(s) of difference between the members who originally heard the appeal. The learned Authorised Representative has contended that he is entitled to raise this additional ground because the proceedings are continuing and final adjudication is yet to be done. His reliance on the Third Member decision in the case of Goodyear India Ltd. (supra) is misconceived. In that case, the learned Third Member dealt with a question, which was not covered by the question referred to him for his opinion. He opined that the Tribunal is the final fact finding authority and the interest of justice and fair play demanded that when a fact had come to notice before the conclusion of a case, it must be duly considered and appropriately decided. It is borne out from the above finding that primarily, his observations are obiter dicta and should not be read out of the context in which these were rendered. Secondly, apart from making general observations, he had not given decision on the point, to which he referred to in the earlier part of his order. Thirdly and the most importantly, the learned Third Member, in assessee’s own case has declined to entertain the, additional ground raised before him which the assessee is now pressing us to admit. If the contention now raised on behalf of the assessee is accepted, that would amount to going back to square one and passing order under section 254(1). Once the hearing is concluded, the right of the assessee in. raising any additional ground is terminated for the obvious reason that the grounds can be urged before or during the course of hearing by the Tribunal. If the aggrieved parties are allowed to raise additional grounds after the conclusion of the hearing, it would inordinately delay, if not stall the judicial process and the proceedings would never come to a stage of finality resulting into the travesty of justice. At this juncture it would be relevant to appreciate the vital distinction between the two situations, viz., one where an additional ground is raised before the Tribunal in the original hearing but the same remains undisposed of while passing the order and the second where the additional ground is raised after the conclusion of the hearing. The later situation, as in the present case, in our considered opinion cannot entitle the assessee to claim adjudication thereupon.
7. A plain reading of section 255(4) brings to light that there is no stipulation for admission of any additional ground de hors the point on which a difference had arisen between the two members who originally heard the appeal. We are not inclined to accept the view canvassed by the learned Authorised Representative that since no such power has been expressly excluded in entertaining the additional ground under section 255(4) of the Act, the same should be impliedly included. It is a basic tenet of interpretation that if the language of the section is plain and unambiguous, there is no warrant for importing any words in the statute to give a different meaning. The Hon’ble Supreme Court in the case of Smt. Tarulata Shyam v. CIT (1977) 108 ITR 345 has laid down that even if there is a casus omissus, the defect can be remedied only by legislation and not the judicial interpretation. When there is no ambiguity in the language of law, it is only the literal interpretation of the section, which is required to be made. The Hon’ble Supreme Court in the case of Federation of Andhra Pradesh Chambers of Commerce & Industry v. State of Andhra Pradesh (2001) 247 ITR 36 has laid down that a taxing statute has to be strictly construed and nothing can be read into it. While holding so, the Hon’ble court considered the classic judgment delivered in the case of Cape Brandy Syndicate v. IRC (1921) 1 KB 64 in which it was held that “in a taxing Act, one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about any tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can look fairly at the language used.” Similar view has been reiterated in the case of Padmasundra Rao v. State of Tamil Nadu (2002) 255 ITR 147 (SC) holding that it is a well settled principle of law that the court cannot read anything into a statutory provision which is plain and unambiguous. It was further held that the first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself. The question is not what may be supposed and what has been intended, but what has been said. In a still recent decision, the Hon’ble Apex Court in the case of Pandian Chemicals Ltd. v. CIT (2003) 262 ITR 278 has reiterated its earlier stand holding that there is no scope for importing any rule of interpretation when the words are clear. A survey of these judicial pronouncements clearly spells out that the authorities are required to be governed by what is clearly stated in a statute. There is no need to go into the intention behind the insertion or amendment of a section when the words used in it do not leave any scope of doubt. There is no warrant for presuming an unintentional omission when the language employed is so clear, not capable of entertaining any doubt. If we go by the view as suggested by the learned Authorised Representative that in the absence of express provision forbidding the Tribunal to entertain an additional ground, the same should be impliedly presumed, it would frustrate the basic rule of interpretation of the statute as discussed above. If such were the intention of the Legislature, section 255(4) would have made a mention of it.
8. Adverting to the facts of the case, we find that the jurisdiction of the Tribunal under section 255(4) is confined to deciding the point of difference according to the opinion of the majority of the Members of the Tribunal. Neither there is any express provision nor it can be inferred by necessary implication that the Tribunal is within its powers to entertain an additional ground which is not even the subject-matter of point of difference between the Members who originally heard the appeal and such additional ground was not raised during the course of original hearing before the Division Bench. This contention raised on behalf of the assessee, having no survival value, deserves the fate of rejection. We have already delineated the distinction between the jurisdiction of the Tribunal while passing orders under section 254(1) and section 255(4). In our opinion. It is too late in the day to come out with the prayer for admission of an additional ground and then adjudicate upon it. We, therefore, decline to admit this ground.
9. In the result, both the appeals are disposed of in above terms.