TaxTMI 
TaxTMI 
1962 (9) TMI 76
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....ion of law is in the following words: "Whether, in the circumstances of the case, there was an order of the Tribunal as contemplated by section 33(4) of the Income-tax Act read with rule 33(1) of the rules framed thereunder?" According to the statement of the case, this question arises in the following circumstances: In respect of the assessment year 1945-46, the assessee, at whose instance this reference has been made, filed two appeals, one under section 33 of the Act and the other under section 14(1) of the Excess Profits Tax Act, to the Tribunal in respect of certain disallowances made by the Income-tax Officer and affirmed by the Appellate Assistant Commissioner. The appeals, being connected, were heard together on Octob....
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....der section 28 or section 31 may appeal to the Appellate Tribunal within sixty days of the date on which such order is communicated to him. (2) The Commissioner may, if he objects to any order passed by an Appellate Assistant Commissioner under section 31, direct the Income-tax Officer to appeal to the Appellate Tribunal against such order, and such appeal may be made within sixty days of the date on which the order is communicated to the Commissioner by the Appellate Assistant Commissioner. (2A) The Tribunal may admit an appeal after the expiry of the sixty days referred to in sub-sections (1) and (2) if it is satisfied that there was sufficient cause for not presenting it within that period. (3) An appeal to the....
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....him or them as the case may be." In our judgment, there is no bar to the two Members of the Tribunal delivering separate, though concurring, judgments. A Tribunal cannot be distinct from the Members who constitute it. It can express itself only through its Members. No one else has a right to speak on behalf of the Tribunal. Therefore, so long as the Members of the Tribunal consider the matter and adjudicate upon it, it would make no difference that instead of there being an order on behalf of both of them, they passed two separate, though concurring, orders. There is nothing in the language either of section 33 or rule 2 or rule 33 which would justify the conclusion that it is not open to them to write separate judgments. What is necessa....
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....ion that it was not competent for the two Members who constitute the Tribunal to write different, though concurring, judgments. The submission that in any case there should have been an order on behalf of the whole Tribunal, like our "Per Curiaem" or "By the Court" orders, which are different from the opinion of the individual judges who constitute the bench hearing a case and inasmuch as no such order was prepared, there is no order of the Tribunal in the eye of the law, in our view, is equally untenable. It is not necessary that in a case where the conclusion of both the Members is the same, there should be a separate order on behalf of the Tribunal. The matter would have been different if they had disagreed and the case was referred to t....
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....s we have to consider not only the actual words used but the scheme of the statute, the intended benefit to the public of what is enjoined by the provisions and the material danger to the public by the contravention of the same." In Rani Drig Raj Kuer v. Raja Amar Krishna Narain Singh [1960] 2 S.C.R. 431; A.I.R. 1960 S.C. 444, it was pointed out that the difference between a directory and a mandatory provision lies in the fact that the disobedience of the law in the former case does not invalidate the order but in the latter case it does. In view of the fact that the two Members had adjudicated upon the matter, had pooled their minds together, had come to the same conclusion and had given separate judgments which were properly sealed and....