3rd Member opinion binding on Account member

The opinion expressed by the Third Member was very much binding on the Account member and he was bound to follow the opinion of the Third Member in its true letter and spirit.

On a difference of opinion among the two Members of the Tribunal, the ld.Third Member was called upon to answer two questions on which there was difference of opinion among the two members who framed the questions and the ld.Third Member in a well considered order, answered the reference by giving sound and valid reasons agreeing with the views of the ld. Judicial Member. Thus, the majority view was in favour of the assessee.

We further hold that the proposed order dated 18.2.2010 of the ld. Accountant Member who is in the minority and had become functus officio wherein he has expressed his inability to give effect to the opinion of the majority and proceeded to frame three new questions to be referred to the Hon’ble President, ITAT again for resolving the controversy cannot be said to be a valid or lawful order passed in accordance with the provisions of section 255(4) of the Act and, hence, the said order dated 18.2.2010 proposed by the ld. Accountant Member is not sustainable in law.

INCOME TAX APPELLATE TRIBUNAL

ITA Nos.6490 and 6491/Mum/2008 (Asst.Years 2004-05 and 2005-06)

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