ORDER
Y.K. Kapur, J.M.
1. This is an application filed by the assessee under Section 254 of the IT Act praying therein that the mistakes pointed out in the application may kindly be rectified or be withdrawn and the matter be ordered to be heard de novo.
2. The facts leading to the filing of the present application is that the appeal filed by the assessee being ITA No. 151/Del/2000 was heard and disposed of by this Tribunal vide order dt. 7th Aug., 2003. Through the present application the assessee has pointed out certain defects. Amongst the other defects pointed out the assessee has contended that through one of the grounds of appeal the challenge to the validity of search was made by the assessee. The case of the assessee is that the assessee in support of his contention has relied upon the judgment of this Tribunal in the case of Dr. A.K. Bansal v. Asstt. CIT (2000) 67 TTJ (All)(TM) 721 : (2000) 73 ITD 49 (All)(TM) which was a Third Member case. It was contended by the assessee that in that judgment the Tribunal has held that the question of validity of search can be gone into by the Tribunal, if raised. According to the assessee this Tribunal has relied upon a Two Member decision of this Tribunal in Virendra Bhatia and Ors. v. Dy. CIT (2002) 74 TTJ (Del) 60 : (2001) 79 ITD 340 (Del). While making his submission the assessee contended that when there was a decision by the Third Member it was the decision of the Three Member Bench of the Tribunal which was binding on this Tribunal and this Tribunal while deciding the appeal has relied upon a Two Member decision of this Tribunal which has caused prejudice to the assessee and the mistake apparent on the face of the record. In support of his contention the assessee drew our attention to the judgment of the jurisdictional High Court in the case of P.C. Puri v. CIT (1985) 352 ITR 584 (Del), wherein at p. 604 it has been held:
“There is no difference really speaking between a Full Bench by three Judges sitting together and this method of referring to Third Judge in the case of difference of opinion between two Judges. Whether the first method is adopted or the second, “opinion of the majority” will be decisive. In this case there is a formal reference to a Third Judge to ascertain his opinion. His is the deciding voice. He turns the scale. The third Judge of the Full Bench not alone but along with the two others who had first heard the case. Whether the Third Judge sits at the same time or different time, two at one time and the third hearing the matter later on a difference of opinion, does not make much difference. As has happened in this case, two Judges have differed. So, the case has come to me, the Third Judge. The two Judges have expressed their opinion. I am now called upon to give my opinion. The opinion of the majority will prevail. All that happens is that the third is segregated from two and does not sit with them. He comes in later on when there is a difference of opinion between them. In all cases it is the theory of the principle, which is the foundation of the doctrine of stare dicisis. Majority is a term signifying the greater number. Counting of heads undertakes the theory of judicial precedents as anything majority decision. Constitutional requirement of constitution of five Judges is based on this theory. Similarly, Code of Civil Procedure, 1908 indicate that in case a difference of opinion, the matter has to be referred to a Third Judge. (See Section 98 CPC). In my opinion, reference was correctly made to me as a Third Judge.”
3. After having drawn our attention to the aforesaid para of the judgment, the learned counsel contended that the decision of the Third Member is a decision by three members and is binding on the Two Member decision and could not be ignored.
4. The learned Departmental Representative while replying to the arguments raised by the learned Authorised Representative relied upon the order already passed. The parties present before us in support and in opposition of the application could not throw any light on the issue as to whether the three Member judgment of the Allahabad Bench of this Tribunal referred to above has been reversed or not and, therefore, we have no option but to observe that the judgment of the Allahabad Bench is still holding the field.
5. The other issue on which we were addressed by the learned Authorised Representative during the course of hearing was that the Tribunal has no power to award interest under Section 158BFA.
6. Apart from the aforesaid grounds, the learned Departmental Representative contended that assessment under Section 158BC can be framed only on the basis of material found and not on estimation basis.
7. To the arguments raised by the learned Authorised Representative, learned Departmental Representative contended that when the statute mandates the levy of interest and the Tribunal being a fact finding body the arguments raised by the learned Authorised Representative has no force. That apart, the learned counsel during the course of hearing also contended that the Tribunal has no power to estimate income and the income has to be estimated on the basis of the documents found during the course of search.
8. We have heard the parties and taken ourselves through the record and find that the decision of the Three Member Bench of the Tribunal was there when the matter was heard and since the said decision was not taken into account and keeping in mind the judgment of Delhi High Court referred to above, we feel that a mistake has crept in the order. Consequent to the above, the application filed by the assessee needs to be allowed and the matter is thus ordered to be posted for rehearing afresh giving both the parties an opportunity to make their submissions afresh. But we make it clear that the levy of interest under Section 158BFA being statutory, no forum has got any power to condone this subject to fulfilment of condition already laid in our order and that part does not call for any interference.
9. Regarding the issue of framing assessment on estimation under Chapter XIV-B, we feel that as we are allowing the application on the other ground and this ground is also debatable, let the parties re-argue the matter also afresh on this issue, as well.
10. In the result, the application filed by the assessee is allowed and the matter is posted for rehearing after giving notice to the parties.