JUDGMENT
1. Admit.
2. At the request of learned advocates, we are taking these matters for final disposal.
3. The question of law raised in these appeals is as under:
(1). “Whether in terms of Section 255 of the IT Act, 1961, when there is a disagreement between the Members, subsequently, one of them can change his opinion agreeing with the other Member ? ”
4. For the asst. yrs. 1993-94 and 1994-95, Tribunal was hearing the Appeal Nos. 3900 and 4517/Delhi/1997 (respectively). The Accountant Member expressed his opinion and by an order dismissed both the appeals preferred by the Revenue. After going through the order of the Accountant Member, the Judicial Member passed an order dt. 3rd June, 2003, to the extent of allowing the appeals of the Revenue partly for statistical purpose. This amounted to a disagreement between the two Members who heard the appeals. Accordingly, the procedure prescribed under Section 255(4) of the IT Act, 1961, ought to have been followed and the matter ought to have been placed before the President, for reference to one or more Members, as deemed fit. This was not done.
5. Strangely, the Accountant Member who expressed opinion earlier, changed his views and agreed with the ultimate findings of Judicial Member on 4th June, 2003. This could not be done. Firstly, the Accountant Member had become functus officio after he passed his initial order. Secondly, the procedure prescribed by the statute had not been followed. As mentioned above, in such a situation, the procedure indicated in Sub-section (4) of Section 255 is required to be followed. Sub-section (4) of Section 255 reads as under :
“(4). 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 Tribunal for hearing on such point or points by one or more of the other Members of the Tribunal, and such point or points shall be decided according to the opinion of the majority of the Members of the Tribunal who have heard the case, including those who first heard it.”
It is in view of this, it was incumbent upon the Members to state the points on which they differed and the case was required to be referred to the President of the Tribunal for appropriate orders. In these circumstances, the Accountant Member could not have subsequently changed his opinion and the order that was required to be passed was one for stating the point or points of difference as prescribed by Sub-section (4) of Section 255.
6. The question is answered accordingly. The effect is that the order made by the Accountant Member on 4th June, 2003 is liable to be set aside and is so set aside. That being the case, it leaves us with two conflicting orders; one passed by the Accountant Member and one passed by the Judicial Member. Thus, there being an unresolved difference of opinion, we send the matter back to the Tribunal, to pass an appropriate order in terms of Sub-section (4) of Section 255 of the IT Act, for a resolution of the difference in the manner prescribed.
7. The appeals are allowed to the extent indicated.