2011 (3) TMI 920

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....p; i) Proceedings initiated by the Assessing Officer u/s.147 is liable to be confirmed or quashed where there was no fresh material available with the Assessing Officer and the assessment had been completed originally u/s.143(1)?   ii) The order of the Assessing Officer is liable to be quashed or to be set aside where copy of the reasons recorded for taking action u/s.147 were not provided to the assessee in spite of specific requests?"   The Third Member answered the question No.1) in paragraph 12 of his order by holding that the proceedings initiated by the Assessing Officer under section 147 are liable to be quashed on the ground that there was no tangible material before the Assessing Officer, even though the assessme....

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....tion (1) is an order finally disposing of the appeal and not any order referable to the power given by that provision. A special procedure is prescribed in case there is a difference of opinion between the Members disposing of the appeal. Subsection (4) of section 255 says that if the Members differ in opinion on any point, the point shall be decided according to the opinion of the majority, if there is one, but if the Members are equally divided (and there is thus no majority) 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 t....

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....the appeal in its entirety which order alone would be an order passed by the Tribunal under sec.254(1). Consistent with this legal position, the practice followed in the Tribunal is to fix the appeal for hearing, after the Third Member has passed the order resolving the difference, before the Division Bench which originally heard the appeal and that Bench would pass an order under sec.254(1) conformably to the opinion of the majority. It is only when such an order is passed, that sub-section (2) of sec.254 can come into play.   5. Interpreting sub-section (7) of section 5A of the Indian Income Tax Act, 1922, which is worded identically with subsection (4) of section 255 of the Income Tax Act, 1961, the Patna High Court in Jan Mohamm....