2004 (3) TMI 337

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....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 vs. 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 ....

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....essed 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. In my opinion, ref....

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.... 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 opp....