TaxTMI 
TaxTMI 
2015 (5) TMI 511
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....the case, deletion of penalty was not justified. Therefore, my answer to the question ......... is that under the facts and circumstances of the case, learned CIT(A) was justified in confirming the penalty levied under section 271(1)(c) of the Act.... 3. The opinion so expressed by the Hon'ble Third Member as also the respective separate orders passed by then Judicial Member and the then Accountant Member constituting this division bench are now placed before us for giving effect to the majority opinion. However, certain objections were raised by the learned counsel of the assessee urging us to adjourn the matter or refer the matter to Hon'ble President for constitution of a special bench. Vide our order of even date, in the cases of Jupiter Corporation Services Limited Vs DCIT and Sulochana Gupta Vs DCIT, we have, giving effect to the majority opinion and dealing with the same objections raised by the assessee, held as follows: 4. Shri Tushar P Hemani, learned counsel for the assessee, seeks adjournment on the ground that the quantum proceedings are pending before Hon'ble Gujarat High Court and are likely to come up for final hearing soon. When we expressed our disinclination to....
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....hus urged to desist from such an exercise and from passing an order which is wholly unsustainable in law and in complete disregard to binding judicial precedents. It is learned counsel's prayer that the matter should be referred to Hon'ble President for constitution of a special bench to resolve this issue. 5. Shri Subhash Bains, learned Commissioner (DR), vehemently opposes these submissions advanced by the assessee. He submits that the valuable time of the bench is being wasted again and again even by causing delay in giving effect to the Third Member decision. He urges us to reject the request for yet another reference to Hon'ble President for constitution of a special bench, and submits that in this case the proceedings are being dragged without any valid reason. It is pointed out that this is a case in which Hon'ble Member nominated as Third Member has been changed once and that, even almost one year after the Third Member opinion is expressed, the disposal of these appeals is being avoided due to dilatory tactics employed by the assessee. It is not the case that the decisions of the coordinate benches have not been followed without any reasons, according to the learned Commi....
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....s completely robs the process of plurality in the decision making which is the foundation of law of precedent where a judgment of a Bench would bind the Bench of equal or lesser number of judges even if it is not a unanimous opinion. Under the circumstances, I feel bound by the decisions of the later Division Benches on the point which arises directly in the present reference" 8. Viewed thus, a larger bench decision binds the bench of a lesser strength because of the plurality in the decision making process and because of the collective application of mind. In simple words, as held by Their Lordships, what three minds do together, even when the result is not unanimous, is treated as intellectually superior to what two minds do together, and, by the same logic, what two minds do together is considered to be intellectually superior to what a single mind does alone. Let us not forget that the dissenting judicial views on the division benches as also the views of the third member are from the same level in the judicial hierarchy and, therefore, the views of the third member cannot have any edge over views of the other members. Of course, when division benches itself also have conflict....
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....d 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 the 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 numbers which is the foundation of the doctrine of stare decisis. Majority is a term signifying the greater number. Counting of heads underlies the theory of judicial precedents as in any majority decision. The constitutional requirement of a constitution Court of five judges is based on this theory. Similarly, the CPC, 1908, enacts that in the case of a difference of opinion, the matter has to be referred to a third judge. (see sec. 98, CPC). In my opinion, the reference was correctly made to me as the third judge. 9. However, before we address ourselves to the correctness of fundamental factual assumption underlying the contentions advanced by the learned counsel, that the decision of the learned Third Member is unsustainable in law inasmuch as it is contrary to the decisions of the division benches directly on the issue before the learned Third Member, we still have to deal with the iss....
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....stries decision on the issue while giving effect to the opinion of the Third Member as per the provisions of section 255(4) of the Act. 5. The Hon'ble Bombay High Court permitted the Counsel of the assessee to withdraw the said appeals. While passing the order the Hon'ble High Court has kept all the contentions open and further directed the Tribunal to consider the decision of the ABG Heavy Industries and other decisions while passing their order giving effect to the opinion of the Third Member as per the provisions of section 255(4) of the Act. The relevant portion of the said order of Hon'ble jurisdictional High Court in ITA No.1307 of 2011 for A.Y. 2000-01 and 1640 of 2011 for A.Y. 2001-02 is as under: "1. Since the Tribunal has recalled the impugned order dated 23.03.2011, the appellant is withdrawing its appeal. 2. Further, while considering the matter afresh, the Tribunal will take into consideration all decisions including the decision of this court in the matter of CIT v. ABG Heavy Industries Ltd. reported in 322 ITR page 323. All contentions are kept open. 3. The appeal is dismissed of in above terms." 6. The issue before us is whether the Tribunal while compl....
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....sident, resolves the impasse by expressing his views and thus enabling a majority view on the point or points of difference. What then remains for the division bench is simply identifying the majority view and dispose of the appeal on the basis of the majority views. In the course of this exercise, it is, in our humble understanding, not open to the division bench to revisit the adjudication process and start examining the legal issues. Of course, we may hasten to add that all that the Tribunal does, remains, and shall always remain, subject to the directions of the Hon'ble Courts above, and, notwithstanding our humble understanding about the scope of work at this stage of proceedings under the scheme of the Income Tax Act, any directions from the Hon'ble Courts above, as in the case of B T Patil (supra), are to be loyally and unhesitatingly followed by us. That is a different situation altogether but then merely because such directions have been issued in one case, it cannot be inferred that, as a normal rule, adjudication process is to be started de novo at the stage of majority view effect proceedings. In case anyone has grievances with the majority view, the aggrieved party can....