DCIT 3(3)(2), V. TULIP HOTELS P.LTD,

MA 151/MUM/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4342 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-04-2016
• Appeal Filed By: Department
• Bench Allotted: E
• Assessment Year: 2004-2005
• Appeal Filed On: 08-07-2015
• Court: TRIBUNAL
• Department Lawyers: MANJUNATHA SWAMY
• Assessee Lawyers: ARVIND SONDE
• Keywords: Additional evidence; Difference of opinion

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE S/SHRI G.S. PANNU(AM), JOGINDER SINGH(JM) & B.R.BASKARAN (AM) M.A. NO. 151/MUM/2015 ARISING OUT OF I.T.A. NO. 6490 /MUM/ 2008 (ASSESSMENT YEAR 2004 - 05) M.A. NO. 152/MUM/2015 ARISING OUT OF I.T.A. NO. 6491/MUM/2008 (ASSESSMENT YEAR 2005 - 06) DCIT - 3(3)(2) ROOM NO. 609 6 TH FLOOR AAYAKAR BHAVAN M.K. ROAD MUMBAI - 400 020. VS. M/S. TULIP HOTELS PVT. LTD. CHANDRAMUKHI BASEMENT BEHIND THE OBEROI MUMBAI - 400 021. ( APPELLANT ) ( RESPONDENT ) PAN NO . AAACT9446Q ASSESSEE BY SHRI ARVIND SONDE DEPARTMENT BY SHRI MANJUNATHA SWAMY DATE OF HEARING 12 .4 . 201 6 DATE OF PRONOUNCEMENT .4 . 201 6 O R D E R PER B.R. BASKARAN, A M : - BOTH THESE MISCELLANEOUS APPLICATIONS HAVE BEEN FILED BY THE REVENUE WITH THE PRAYER TO RECALL THE COMMON ORDER DATED 30 - 03 - 2012 PASSED BY THE SPECIAL BENCH IN ORDER TO RECTIFY APPARENT MISTAKES OF FACTS THAT HAVE CREPT THEREIN AND ACCORDINGLY TO MODIFY THE CONCLUSION . 2. A SPECIAL BENCH WAS CONSTITUTED BY THE HON BLE PRESIDENT OF THE TRIBUNAL TO CONSIDER AND DECIDE FOLLOWING QUESTION: - M/S. TULIP HOTELS PVT. LTD. 2 WHETHER ON A PROPER INTERPRETATION OF SUB - SECTION (4) OF SECTION 255 OF THE INCOME TAX ACT, THE ORDER PROPOSED BY THE LEARNED AM WHILE GIVING EFFECT TO THE OPINION OF THE MAJORITY CONSEQUENT TO THE OPINION EXPRESSED BY THE LEARNED THIRD MEMBER, CAN BE SAID TO BE A VALID OR LAWFUL ORDER PASSED IN ACCORDANCE WITH THE SAID PROVISION. THESE MISCELLANEOUS PETITIONS ARE FILED AGAINST THE ORDER DATED 30 - 03 - 2012 PASSED BY THE SPECIAL BE NCH. 3. BEFORE PROCEEDING FURTHER, WE FEEL IT PERTINENT TO DISCUSS ABOUT THE BACK GROUND RELATING TO THE CONSTITUTION OF SPECIAL BENCH FOR THE PURPOSE OF DECID ING THE QUESTION REFERRED ABOVE. THE ASSESSEE FILED APPEALS BEFORE THE TRIBUNAL CHALLENGING THE ORDERS PASSED BY LD CIT(A) FOR ASSESSMENT YEARS 2004 - 05 AND 2005 - 06. SINCE THERE WAS DIFFERENCE OF OPINION BETWEEN THE MEMBERS CONSTITUTING THE DIVISION BENCH HEARING THOSE APPEALS , A REFERENCE WAS MADE TO THE HONBLE PRESIDENT UNDER SECTION 255(4) OF THE INCOME TAX ACT, 1961 FOR REFERRING THE POINTS OF DIFFERENCE TO A THIRD MEMBER. THE PROVISIONS OF SEC. 255(4) OF THE ACT DEALS WITH THE MANNER OF REFER RING THE MATTERS TO THE THIRD MEMBER AND MANNER IN WHICH THE ISSUES SHOULD BE DECIDED. THE SAID SEC TION READS AS UNDER: - 255(4) IF THE MEMBERS OF A BENCH DIFFER IN OPINION ON ANY POINT, THE POINT SHALL BE DECIDED ACCORDING TO THE OPINION OF THE MAJORITY, IF THERE IS A MAJORITY, BUT IF THE MEMBERS ARE EQUALLY DIVIDED, THEY SHALL STATE THE POINT OR POI NTS ON WHICH THEY DIFFER, AND THE CASE SHALL BE REFERRED BY THE PRESIDENT OF THE APPELLATE TRIBUNAL FOR HEARING ON SUCH POINT OR POINTS BY ONE OR MORE OF THE OTHER MEMBERS OF THE APPELLATE TRIBUNAL, AND SUCH POINT OR POINTS SHALL BE DECIDED ACCORDING TO TH E OPINION OF THE MAJORITY OF THE MEMBERS OF THE APPELLATE TRIBUNAL WHO HAVE HEARD THE CASE, INCLUDING THOSE WHO FIRST HEARD IT. M/S. TULIP HOTELS PVT. LTD. 3 ACCORDINGLY, THE HONBLE THIRD MEMBER EXPRESSED HIS VIEWS ON THE POINTS REFERRED TO HIM, VIDE HIS ORDER DATED 27 - 11 - 2009 , AND PLACED THE SAME BEFORE THE REGULAR BENCH FOR PASSING APPROPRIATE ORDER S IN ACCORDANCE WITH THE LAW. 4. ACCORDINGLY, THE ORDER OF THE THIRD MEMBER WAS PLACED BEFORE THE DIVISION BENCH TO DISPOSE OF THE POINTS ACCORDING TO THE OPINION OF THE MAJORITY OF THE MEMBERS WHO HAVE HEARD THE MATTER. THE EVENTS THAT HAPPENED SUBSEQUENT THERETO HAVE BEEN NARRATED AS UNDER BY THE SPECIAL BENCH: - 9. WHILE GIVING EFFECT TO THE OPINION OF THE LD THIRD MEMBER, THE LD. JUDICIAL MEMBER PASSED THE CONFORMITY ORDER IN FEBRUARY 2010. HOWEVER, THE LD. ACCOUNTANT MEMBER OBSERVED THAT IT IS NOT POSSIBLE TO GIVE EFFECT TO THE ORDER OF THE LD. THIRD MEMBER AS THE ORDER OF THE HONBLE THIRD MEMBER IS CONTRARY TO HIS OWN EXPRESSED OPINION AND HAS ALSO NOT CONSIDERED VARIOUS PO INTS OF DIFFERENCE ARISING FROM THE PROPOSED ORDERS OF THE MEMBERS OF THE BENCH. THERE IS ALSO DIFFICULTY IN FORMING THE MAJORITY OF OPINION. THE DI FFICULTY, IT APPEARS HAS ARISEN PARTLY BECAUSE OF THE QUESTION FRAMED BEING TOO GENERAL WITHOUT SPECIFYING THE POINT OF DIFFERENCES IN DECIDING THE ISSUE AND PARTLY BECAUSE SOME OF THE VITAL FACTS HAVE BEEN OMITTED TO BE CONSIDERED IN THE ORDER OF THE LD. THIRD MEMBER. THE LD. ACCOUNTANT MEMBER, AFTER CONSIDERING THE ARGUMENTS OF BOTH THE SIDES OBSERVED THAT IT WOULD BE APPROPRIATE FOR THE DIVISION BENCH TO REFER THE MATTER BACK TO THE HONBLE PRESIDENT, ITAT THAN TO PASS PERVERSE ORDER SO THAT THE CONTROVERSY COULD BE RESOLVED PROPERLY AND ACCORDINGLY HE FRAMED FOLLOWING NEW QUESTIONS: M/S. TULIP HOTELS PVT. LTD. 4 1. WHETHER ON THE FA CTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ADDITIONAL EVIDENCE WHICH HAD NOT BEEN FILED BEFORE AO, CAN BE ADMITTED BY THE TRIBUNAL IN DECIDING THE ISSUE OF CASH CREDIT AND IF SO WHETHER THE TRIBUNAL CAN DECIDE THE ISSUE BASED ON FRESH EVIDENCE OR THE IS SUE IS REQUIRED TO BE RESTORED TO THE FILE OF THE AO FOR FRESH ADJUDICATION AFTER EXAMINING THE DETAILED EVIDENCE AND AFTER NECESSARY INQUIRIES AND OPPORTUNITIES TO THE ASSESSEE. 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AS HIGHLIGHTED IN THE PROPOSED ORDER OF THE AM AND PARTICULARLY THE FACT THAT THE ASSESSEE PRODUCED NO EVIDENCE TO SHOW THAT THE FOREIGN REMITTANCES CREDITED IN THE ACCOUNTS OF THE ASSESSEE HAD BEEN MADE OUT OF FUNDS BELONGING TO THE CREDITOR, THE CASH CREDIT CAN BE TAKEN A S EXPLAINED SATISFACTORILY ONLY ON THE GROUND THAT THE ASSESSEE WAS DOING BUSINESS AND OWNED SEVERAL PROPERTIES. 3. WHETHER CONSIDERING THE FINDING OF THE AO AND THE AUDITORS NOTE AND ALL OTHER RELEVANT MATERIAL IT CAN BE SAID THAT THE ASSESSEE HAD N OT CLAIMED ANY EXPENDITURE IN RELATION TO THE PAYMENT MADE TO COX & KINDS AND TULIP STAR HOTELS LTD AND WHETHER THE CLAIM OF EXPENDITURE CAN BE ALLOWED CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE. 10. THE LD. JUDICIAL MEMBER HAS EXPRESSED HIS D ISAGREEMENT WITH THE COURSE ADOPTED BY THE LD. ACCOUNTANT MEMBER AND IN A NOTE DATED 23.2.2010 HAS PROPOSED THE FOLLOWING QUESTION TO BE REFERRED TO THE SPECIAL BENCH OR LARGER BENCH TO RESOLVE THE CONTROVERSY. WHETHER ON THE FACTS AND CIRCUMSTANCES OF T HE CASE, THE MEMBERS OF THE BENCH, COULD COMMENT ON THE ORDER OF THE THIRD MEMBER, INSTEAD OF PASSING A CONFIRMATORY ORDER IN TERMS OF SECTION 255(4) OF THE ACT?. 5. IT CAN BE NOTICED THAT THE DIVISION BENCH DID NOT PASS THE ORDER TO GIVE EFFECT TO T HE ORDER OF THE HONBLE THIRD MEMBER, I.E., TO DECIDE THE M/S. TULIP HOTELS PVT. LTD. 5 POINTS ACCORDING TO THE OPINION OF THE MAJORITY OF THE MEMBERS. IT CAN BE NOTICED THAT T HE HONBLE ACCOUNTANT MEMBER , VIDE HIS ORDER DATED 18 - 02 - 2010, CHOSE TO REFER THE MATTER AGAIN TO THE HONBLE PRESIDENT WITH FURTHER QUESTIONS RELATING TO MERITS/POWER. HOWEVER, THE HONBLE JUDICIAL MEMBER TOOK THE VIEW THAT SUCH COURSE OF ACTION IS NOT PERMISSIBLE AT TH AT STAGE AND ACCORDINGLY HE FRAMED THE QUESTION REFERRED ABOVE. 6. SINCE THE DIFFERENCE OF OPINION BETWEEN THE MEMBERS CONSTITUTING THE DIVISION BENCH AROSE AT THE STAGE OF IMPLEMENTATION OF THE ORDER PASSED BY THE HONBLE THIRD MEMBER, THE SAME WAS FOUND TO BE RELATED TO THE INTERPRETATION OF THE PROVISIONS OF SEC. 255(4) OF THE ACT. HENCE THE HONBLE PRESIDENT CONSTITUTED A SPECIAL BENCH TO DECIDE THE LEGALITY OF THE ORDER PASSED BY THE HONBLE ACCOUNTANT MEMBER AT THE TIME OF GIVING EFFECT TO THE ORDER OF THE THIRD MEMBER IN TERMS OF THE PROVISIONS OF SEC. 255(4) OF THE ACT . FOR THE SAKE OF CONVENIENCE AND AT THE COST OF REPETITION , WE EXTRACT BELOW THE QUESTION REFERRED TO THE SPECIAL BENCH: - WHETHER ON A PROPER INTERPRETATION OF SUB - SECTION (4) OF SECTION 255 OF THE INCOME TAX ACT, THE ORDER PROPOSED BY THE LEARNED AM WHILE GIVING EFFE CT TO THE OPINION OF THE MAJORITY CONSEQUENT TO THE OPINION EXPRESSED BY THE LEARNED THIRD MEMBER, CAN BE SAID TO BE A VALID OR LAWFUL ORDER PASSED IN ACCORDANCE WITH THE SAID PROVISION. 7 . THE SPECIAL BENCH DELIVERED ITS DECISION ON 30 - 03 - 2012 AND THE OPERATIVE PORTION OF THE ORDER READS AS UNDER: - 55. FOR THE REASONS AS DISCUSSED ABOVE WE HOLD THAT 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 D IFFERENCE OF OPINION AMONG THE TWO MEMBERS WHO FRAMED THE QUESTIONS AND THE LD. THIRD MEMBER IN A WELL M/S. TULIP HOTELS PVT. LTD. 6 CONSIDERED ORDER, ANSWERED THE REFERENCE BY GIVING SOUND AND VALID REASONS AGREEING WITH THE VIEWS OF THE LD. JUDICIAL MEMBER. THUS, THE MAJORITY VIEW W AS 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 HAS BECOME FUNCTUS OFFICIO WHEREIN HE HAS EXPRESSED HIS INABILITY TO GIVE EFFECT TO THE OPINION OF THE MAJORITY A ND PROCEEDED TO FRAME THREE NEW QUESTIONS TO BE REFERRED TO THE HONBLE 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 S AID ORDER DATED 18 - 02 - 2010 PROPOSED BY THE LD ACCOUNTANT MEMBER IS NOT SUSTAINABLE IN LAW. ACCORDINGLY, WE ANSWER THE QUESTION REFERRED TO US IN NEGATIVE, I.E., IN FAVOUR OF THE ASSESSEE. THUS, THE SPECIAL BENCH HELD THAT THE ORDER PASSED BY THE H ONBLE ACCOUNTANT MEMBER CANNOT BE SAID TO BE A VALID OR LAWFUL ORDER IN TERMS OF SEC. 255(4) OF THE ACT. 8. IT MAY BE NOTICED THAT THE THEN PRESIDENT OF ITAT WAS PART OF THE SPECIAL BENCH AND IT CAN BE NOTICED THAT HE TOOK A DECISION THAT THE SAME S PECIAL BENCH SHALL DISPOSE OF THE APPEALS ON THE BASIS OF MAJORITY VIEW. HENCE THE SPECIAL BENCH PROCEEDED TO DISPOSE OF THE APPEALS PERTAINING TO ASSESSMENT YEARS 2004 - 05 AND 2005 - 06 WITH THE FOLLOWING OBSERVATIONS: - M/S. TULIP HOTELS PVT. LTD. 7 56. AT THE TIME OF HEARING, WIT H THE CONSENT OF THE PARTIES AND IN THE INTEREST OF JUSTICE, IT HAS BEEN DECIDED BY THE HONBLE PRESIDENT TO FINALLY DISPOSE OF THE APPEALS ON THE BASIS OF MAJORITY VIEW. THEREFORE, BASED ON THE OPINION OF THE MAJORITY, THE GROUND WISE DECISION OF THE APP EALS FOR THE ASSESSMENT YEARS 2004 - 05 AND 2005 - 06 IS AS UNDER: ACCORDINGLY THE SPECIAL BENCH DISPOSED OF THE APPEALS BY DECIDING ALL THE ISSUES ON THE BASIS OF MAJORITY VIEW. 9. SUBSEQUENTLY, THE REVENUE HAS FILED THESE MISCELLANEOUS PETITIONS AND THE SAME READS AS UNDER: - 1. THE HON'BLE INCOME TAX APPELLATE TRIBUNAL, MUMBAI SPECIAL BENCH 'E', MUMBAI PASSED AN ORDER DATED 30.03.2012 IN ITA NOS. 6490 AND 6491/MUM/2008 FOR A.YS. 2004 - 05 & 2005 - 06, FILED BY M/S. TULIP HOTELS PVT. LTD. 2. AGGRIEVED BY THE ORDER OF THE HON'BLE ITAT, SPECIAL BENCH 'E' MUMBAI, THE PRESENT MISCELLANEOUS APPLICATION IS FILED ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. AS PER THE HON'BLE SPECIAL BENCH, THE HON'BLE PRESIDENT OF THE ITAT, ON A REFERENCE MADE BY A DIVISI ON BENCH, CONSTITUTED THE SPECIAL BENCH VIDE ORDER DATED 14.05.2010 AND THE FOLLOWING QUESTION WAS REFERRED TO HON'BLE BENCH FOR CONSIDERATION AND DECISION: 'WHETHER ON A PROPER INTERPRETATION OF SUB - SECTION (4) OF SECTION 255 OF THE INCOME TAX ACT, THE O RDER PROPOSED BY THE LEARNED AM M/S. TULIP HOTELS PVT. LTD. 8 WHILE GIVING EFFECT TO THE OPINION OF THE MAJORITY CONSEQUENT TO THE OPINION EXPRESSED BY THE LEARNED THIRD MEMBER, CAN BE SAID TO BE A VALID OR LAWFUL ORDER PASSED IN ACCORDANCE WITH THE SAID PROVISION' 4. THE HON'BLE SPE CIAL BENCH, IN ITS ORDER ANSWERED THE ABOVE FRAMED QUESTION BY THE HON'BLE PRESIDENT AND ALSO DECIDED THE APPEAL OF THE ASSESSEE PENDING BEFORE THE REGULAR/DIVISION BENCH. 5. I FIND THAT THE HON'BLE SPECIAL BENCH, WHILE ANSWERING THE QUESTION REFERRED TO IT BY THE HON'BLE PRESIDENT, ITAT, MUMBAI AND DECIDING THE APPEAL FILED/PENDING BEFORE REGULAR BENCH HAS MADE FOLLOWING APPARENT ERRORS OF FACTS: (I) THE QUESTION FRAMED, FOR CONSIDERATION AND DECISION OF THE HON'BLE SPECIAL BENCH IS ERRONEOUS INASMUCH AS IN RECORDING THAT 'THE ORDER PROPOSED BY THE LD. ACCOUNTANT MEMBER', WHEREAS THERE WAS NO SUCH ORDER PASSED BY THE LD. ACCOUNTANT MEMBER AND ONLY AN OPINION WAS EXPRESSED BY HIM, AND THIS FACT HAS BEEN BROUGHT INTO THE NOTICE OF THE HON'BLE BENCH BY THE LD. D R, AS ALSO FINDING PLACE IN PARA 21 OF THE ORDER. (II) IN PARA 37, BY OBSERVING/RECORDING THAT 'IN THIS CASE, OPINION OF THE MAJORITY HAS ARRIVED AT IN FAVOUR OF THE A SSESSEE', WHEREAS THERE WAS NO MAJORITY OPINION, AS FAR AS THE FIRST QUESTION REFERRED TO T HE THIRD MEMBER IS CONCERNED, THE LD. THIRD MEMBER, IN PARA 5 OF HIS ORDER, HIMSELF OBSERVED THAT THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE WERE REQUIRED TO BE RESTORED TO THE AO FOR FRESH CONSIDERATION. THE FACT THAT NO MAJORITY OPINION WAS ARRIVED IN THIS CASE WAS ALSO BROUGHT ON THE RECORD BY THE LD. ACCOUNTANT MEMBER IN PARA 2.1 OF HIS ORDER IN RESPONSE TO THE STAY PETITION FILED BY THE ASSESSEE, WHICH WAS HEARD TOGETHER. (III) IN PARA 37, ON THE SECOND ISSUE OF ADDITION ON ACCOUNT OF REIMBURSEME NT OF EXPENSES, BY REFERRING TO/ENDORSING THE OBSERVATION OF THE LD. THIRD MEMBER THAT 'WHEN NO DEDUCTION WAS CLAIMED, THE QUESTION OF ANY DISALLOWANCE DOES NOT ARISE' WITHOUT M/S. TULIP HOTELS PVT. LTD. 9 APPRECIATING THE FACT THAT THE LD. THIRD MEMBER OMITTED TO CONSIDER THE AUDIT RE PORT THAT THE ASSESSEE HAD DECLARED THE INCOME ON THE NET BASIS AND THE EXPENSES HAD THEREFORE BEEN CLAIMED AND ONCE THE INCOME HAD BEEN SHOWN ON NET BASIS, THE EXPENSES COULD NOT BE EXPECTED TO APPEAR IN THE P/L ACCOUNT. THE ABOVE OMISSION OF FACT BY T HE LD. THIRD MEMBER WAS SPECIFICALLY BROUGHT ON RECORD AND INTO THE NOTICE OF THE HON'BLE SPECIAL BENCH BY THE LD. ACCOUNTANT MEMBER IN PARA 4 OF HIS ORDER REFERRED ABOVE AND IN QUESTION NO. 3 REFERRED BY HIM (FINDING PLACE IN PARA 9 OF THIS ORDER). (IV) IN PARA 38, BY RECORDING THAT AS PER LD. ACCOUNTANT MEMBER THE LD. TM IS REQUIRED TO RESTORE THE ADDITIONAL EVIDENCES FILED BEFORE HIM/TRIBUNAL TO THE FILE OF THE AO FOR FRESH ADJUDICATION AFTER EXAMINING THE SAID EVIDENCE AND AFTER PROVIDING REASONABLE OP PORTUNITY OF BEING HEARD TO THE ASSESSEE', WHICH IS CONTRARY TO THE FACT THAT THE LD. THIRD MEMBER WAS HIMSELF OF OPINION THAT THE ADDITION EVIDENCES FILED BY THE ASSESSEE WAS REQUIRED TO BE RESTORED TO THE AO FOR FRESH CONSIDERATION, AND OBSERVED IN PARA 5 OF HIS ORDER, AS UNDER: . IN PRINCIPLE I AGREE WITH THE LEARNED DR THAT WHEN THE INCOME TAX APPELLATE TRIBUNAL ADMITS ADDITIONAL EVIDENCES, IT SHOULD ALLOW A REASONABLE OPPORTUNITY TO THE ASSESSING OFFICER TO EXAMINE SUCH ADDITIONAL EVIDENCES AND TO P RODUCE ANY EVIDENCE OR DOCUMENT IN REBUTTAL OF SUCH ADDITIONAL EVIDENCES. FOR THIS PURPOSE, EITHER THE ITAT CAN CALL FOR THE REMAND REPORT FROM THE ASSESSING OFFICER OR MAY SET ASIDE THE MATTER TO THE ASSESSING OFFICER FOR EXAMINATION OF ADDITIONAL EVIDENC ES AND THEREAFTER RE - ADJUDICATION. ADMITTEDLY, IT HAS NOT BEEN DONE BY THE ITAT IN THIS CASE. .. FURTHER, THE ABOVE OBSERVATION/FINDING OF THE LD. THIRD MEMBER WAS BROUGHT INTO THE NOTICE OF THE HON'BLE BENCH BY THE LD. DEPARTMENTAL REPRESENTATIVE, AS ALSO FINDING PLACE IN PARA 21 OF THE ORDER. (V) IN PARA 51, BY RECORDING THAT 'THE ADDITIONAL EVIDENCE, AFTER PROVIDING OPPORTUNITY, WAS CONSIDERED BY BOTH THE MEMBERS WHO ORIGINALLY HEARD THE APPEAL AND THE SAME WAS ALSO CONSIDERED BY THE LD. THIRD MEMB ER ' AND IN PARA 52, BY RECORDING THAT 'THE ADDITIONAL EVIDENCE AFTER PROVIDING OPPORTUNITY WAS CONSIDERED BY M/S. TULIP HOTELS PVT. LTD. 10 THE LD. THIRD MEMBER' WHICH IS CONTRARY TO THE FACT THAT THE LD. AM, IN PARA 2 OF HIS ABOVE REFERRED ORDER EXPRESSLY DENIED TO HAVE CONSIDERED THE ADDITIONAL EVIDENCES FILED BY ASSESSEE BY RECORDING THAT 'THE LEARNED AM ON THE OTHER HAND OBSERVED THAT THE ADDITIONAL EVIDENCES REMAINED UNEXAMINED AND EVEN IF FOR THE SAKE OF ARGUMENTS THESE WERE CONSIDERED, THESE DID NOT EXPLAIN THE CASH CREDIT SATISFA CTORILY. APPARENTLY HE DID NOT CONSIDER THE ADDITIONAL EVIDENCE AS NO ORDER WAS BASED ADMITTING THE SAME'. (VI) IN PARA 51 & 52, BY ABOVE RECORDING OF 'AFTER PROVIDING OPPORTUNITY', AS THE SAME IS CONTRARY TO THE FACT THAT NO SUCH OPPORTUNITY WAS PROVIDED TO T HE DEPARTMENT. THE LD. THIRD MEMBER HAS EXPRESSLY ADMITTED THIS FACT IN PARA 5 OF HIS ORDER THAT NO OPPORTUNITY FOR EXAMINATION OF THE ADDITIONAL EVIDENCES WERE PROVIDED TO THE AO/DEPARTMENT. THE LD. THIRD MEMBER ALSO NOT PROVIDED ANY OPPORTUNITY AS EVIDEN T FROM RECORDING MADE IN PARA 5 OF HIS ORDER, AS UNDER: IN THE ABOVE CIRCUMSTANCES, I AM LEFT WITH NO ALTERNATIVE BUT TO CONSIDER ALL THE EVIDENCES, INCLUDING ADDITIONAL EVIDENCE CONSIDERED BY THE LD. MEMBERS OF THE ITAT AND THEN ARRIVE AT THE CONCL USION WHETHER THE ASSESSEE IS ABLE TO DISCHARGE THE ONUS LAY UPON HIM.' THE FACT THAT NO SUCH OPPORTUNITY WAS PROVIDED TO THE DEPARTMENT WAS ALSO SPECIFICALLY ARGUED/POINTED OUT BY THE LD. DR, FINDING PLACE IN PARA 21, 22, 24, 25, 26 &27 OF THE ORDER. (V II) IN PARA 56, BY RECORDING THAT 'WITH THE CONSENT OF THE PARTIES AND IN THE INTERESTS OF JUSTICE, IT HAS BEEN DECIDED BY THE HON'BLE PRESIDENT TO FINALLY DISPOSE OF THE APPEALS ON THE BASI S OF MAJORITY VIEW.' WHICH IS CONTRARY TO THE FACT THAT THE DEPAR TMENT HAD NEVER GIVEN ANY SUCH CONSENT AND THE LD. DR HAD ARGUED AGAINST THE CONSTITUTION OF THE SPECIAL BENCH, WHICH WAS NOT EVEN CONSIDERED. ** 8. IN VIEW OF THE ABOVE, IT IS HUMBLY PRAYED THAT THE HON'BLE ITAT SPECIAL BENCH E MAY RECALL ITS EARLIER OR DER DATED 30.3.3012 AND CALL FOR REMAND REPORT FROM AO IN ITA NOS. 6490 AND M/S. TULIP HOTELS PVT. LTD. 11 6491/MUM/2008 FOR A.Y. 2004 - 05 AND 2005 - 06 FOR RECTIFICATION OF THE APPARENT ERRORS OF FACTS THEREIN AND THE CONCLUSION BASED THEREON AND MODIFY ITS ORDER ACCORDINGLY. (** IN THE PETITION THE PARAGRAPH NEXT TO PARAGRAPH 5 HAS BEEN NUMBERED AS PARAGRAPH 8) 10. SINCE THE MISCELLANEOUS PETITIONS HAVE BEEN FILED AGAINST THE ORDERS PASSED BY A SPECIAL BENCH, THE HONBLE PRESIDENT CONSTITUTED A BENCH OF EQUAL STRENGTH TO HEAR THESE PETITIONS. DURING THE COURSE OF HEARING OF MISCELLANEOUS PETITIONS ON 20.11.2015, THE BENCH DIRECTED THE REVENUE TO FILE AN AFFIDAVIT WITH REGARD TO THE AVERMENTS MADE IN PARA 5(VII) OF THE PETITION. WE NOTICE THAT THE AFFIDAVIT WAS INITIALLY FILED BY TH E ASSESSING OFFICER. WHEN THE ASSESSEE OBJECTED TO THE SAME BY STATING THAT HE WAS NOT A PARTY TO THE PROCEEDINGS BEFORE THE SPECIAL BENCH, THE THEN LD D.R FILED AN AFFIDAVIT DATED 28.03.2016 AND THE SAME READS AS UNDER: - I, B. JAYA KUMAR, COMMISSIONER OF INCOME TAX (DR), MUMBAI BEING THE REPRESENTATIVE OF REVENUE DEPARTMENT, ON BEHALF OF THE DEPARTMENT DO HEREBY SOLEMNLY AFFIRM AS UNDER: 1. I SAY THAT, I HAVE READ THE COPY OF THE MISCELLANEOUS APPLICATION DATED 08.07.2015 FILED BY THE APPELLANT. I SAY THAT I AM COMPETENT TO FILE THIS AFFIDAVIT AND HAVE ALSO PERUSED ALL THE RECORDS AVAILABLE IN MY OFFICE IN CONNECTION WITH THE CASE AND ACCORDINGLY, I AM CONVERSANT WITH THE FACTS OF THE CASE AND ABLE TO DEPOSE TO THE SAME. I SAY THAT I AM FILING THIS AF FIDAVIT IN RESPONSE TO THE BELOW MENTIONED QUERY RAISED BY THE HONBLE SPECIAL BENCH DURING THE HEARING ON 20.11.2015: M/S. TULIP HOTELS PVT. LTD. 12 SUBSTANTIATE THE CLAIM OF DR AS PLEADED IN PARA 5(VII) OF THE APPLICATION BY WAY OF AFFIDAVIT AND ALSO ELABORATE WHICH KIND OF CONSENT IT IS TALKING ABOUT. WHETHER THIS WAS ABOUT CONSTITUTIONS OF BENCH, PASSING OF ORDER OR ON MERIT 2. WITH REGARD TO THE ABOVE MENTIONED QUERY OF THE HONBLE SPECIAL BENCH, IT IS HEREBY SUBMITTED THAT THE DEPARTMENT HAS NOT GIVEN ANY CONSENT FOR DISPOSIN G THE APPEAL ON THE BASIS OF MAJORITY VIEW AND HENCE, IN THE PARA 56 OF THE ORDER OF THE ITAT DATED 30.03.2012 IT IS FALSELY MENTIONED WITH THE CONSENT OF PARTIES., WHEREAS, THE DECISION OF THE PRESIDENT OF SPECIAL BENCH OF HONBLE ITAT OF DISPOSING THE APPEAL ON THE BASIS OF MAJORITY VIEW WAS A DECISION WITHOUT THE CONSENT OF DEPARTMENT AND AN ARGUMENT WAS MADE AGAINST THE CONSTITUTION OF THE SPECIAL BENCH, WHICH WAS NOT EVEN CONSIDERED. 11. SUPPORTING THE MISCELLANEOUS PETITIONS FILED BY THE REVE NUE, T HE LD D.R SUBMITTED THAT THE REVENUE DID NOT GIVE ITS CONSENT TO THE SPECIAL BENCH FOR DISPOSING THE APPEALS. HE FURTHER SUBMITTED THAT THE ORDER OF THE TRIBUNAL MAY GIVE A MEANING THAT THE REVENUE HAS CONSENTED TO THE DECISION GIVEN BY THE SPECIAL BENCH ON THE BASIS OF MAJORITY VIEW AND IT MAY HAMPER ITS RIGHT TO PREFER APPEAL AGAINST THE ORDER OF THE SPECIAL BENCH. HE FURTHER SUBMITTED THAT THE LD D.R HAD ARGUED AGAINST THE CONSTITUTION OF SPECIAL BENCH ITSELF AND THE SAID ARGUMENTS WERE NOT M/S. TULIP HOTELS PVT. LTD. 13 CONSI DERED. HE FURTHER SUBMITTED THAT THE TRIBUNAL HAS GOT A DUTY TO CONSIDER ALL THE CASE LAWS ON THE SUBJECT, EVEN IF THEY HAVE NOT BEEN QUOTED BEFORE IT, WHILE DISPOSING OF THE APPEALS. HE SUBMITTED THAT NON - CONSIDERATION OF VARIOUS IMPORTANT CASE LAWS AVA ILABLE ON THE IMPUGNED MATTER HAS RESULTED IN A MISTAKE APPARENT FROM RECORD. HE FURTHER SUBMITTED THAT THE REVENUE HAS POINTED OUT VARIOUS TYPES OF MISTAKES IN PARAGRAPH 5(II) TO 5(VI) OF THE PETITION , WHICH AFFECT THE OUTCOME OF THE GROUNDS RAISED IN TH E APPEALS BEFORE THE TRIBUNAL . ACCORDINGLY HE CONTENDED THAT THE ORDER OF THE SPECIAL BENCH SHOULD BE RECALLED. 12. ON THE CONTRARY, THE LD A.R SUBMITTED THAT SPECIAL BENCH WAS CONSTITUTED BY THE HONBLE PRESIDENT IN ORDER TO DECIDE THE LEGALITY OF THE ORDER PASSED BY THE HONBLE ACCOUNTANT MEMBER WHILE GIVING EFFECT TO THE ORDER PASSED BY THE HONBLE THIRD MEMBER, SINCE THE HONBLE JUDICIAL MEMBER HAS EXPRESSED THE VIEW THAT THE COURSE ADOPTED BY THE HONBLE ACCOUNTANT MEMBER WAS NOT IN ACCORDANCE W ITH THE MANDATE OF THE THE PROVISIONS OF SEC. 255(4) OF THE ACT. HE SUBMITTED THAT THE SPECIAL BENCH, AFTER DECIDING THE QUESTION REFERRED TO IT, HAS PROCEEDED TO DISPOSE OF THE APPEALS IN ACCORDANCE WITH THE PROVISIONS OF SEC. 255(4) OF THE ACT, AS PER T HE DECISION OF THE HONBLE PRESIDENT WHO WAS PART OF THE SPECIAL BENCH. HE SUBMITTED THAT THE PROVISIONS OF SEC. 255(4) ARE VERY CLEAR IN STATING THAT THE POINTS OF DIFFERENCE SHALL BE DECIDED ACCORDING TO THE OPINION OF THE MAJORITY OF THE MEMBERS OF THE APPELLATE TRIBUNAL WHO HAVE HEARD THE CASE. HE SUBMITTED THAT THE SPECIAL BENCH HAS DISPOSED OF THE APPEALS ON THE BASIS OF OPINION OF THE MAJORITY OF THE MEMBERS AND HENCE NO FAULT CAN BE FOUND WITH THE ORDER PASSED BY THE SPECIAL BENCH. 13. WE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. WE HAVE CAREFULLY GONE THROUGH THE ORDER PASSED BY THE SPECIAL BENCH AS WELL AS M/S. TULIP HOTELS PVT. LTD. 14 THE MISCELLANEOUS PETITION S FILED BY THE REVENUE. WE HAVE NOTICED EARLIER THAT THE LD ACCOUNTANT MEMBER HAS PASSED AN ORDER BY OBSERVING THAT THE VIEW S EXPRESSED BY THE HONBLE THIRD MEMBER CANNOT BE GIVEN EFFECT TO AND FURTHER EXPRESSED THE VIEW THAT A SPECIAL BENCH IS REQUIRED TO BE CONSTITUTED TO DISPOSE OF THE APPEALS BY EXAMINING CERTAIN FRESH SET OF QUESTIONS FRAMED BY H IM. THE LD JUDICIAL MEMBER DID NOT AGREE WITH THE SAID ORDER, SINCE HE WAS OF THE VIEW THAT THE COURSE ADOPTED BY THE LD ACCOUNTANT MEMBER WAS NOT IN ACCORDANCE WITH THE PROVISIONS OF SEC. 255(4) OF THE ACT . ACCORDINGLY HE FRAMED QUESTION WITH REGARD TO THE VALIDITY OF THE COURSE ADOPTED BY THE LD ACCOUNTANT MEMBER AND REFERRED THE SAME TO THE HONBLE PRESIDENT BY WAY OF A NOTE. AFTER CONSIDERING THE ORDER PASSED BY THE HONBLE ACCOUNTANT MEMBER AND THE VIEW EXPRESSED BY THE HONBLE JUDICIAL MEMBER, THE HONBLE PRESIDENT FORMED A SPECIAL BENCH TO DECIDE THE FOLLOWING QUESTION. WHETHER ON A PROPER INTERPRETATION OF SUB - SECTION (4) OF SECTION 255 OF THE INCOME TAX ACT, THE ORDER PROPOSED BY THE LEARNED AM WHILE GIVING EFFECT TO THE OPINION OF THE MAJO RITY CONSEQUENT TO THE OPINION EXPRESSED BY THE LEARNED THIRD MEMBER, CAN BE SAID TO BE A VALID OR LAWFUL ORDER PASSED IN ACCORDANCE WITH THE SAID PROVISION. 14. A CAREFUL PERUSAL OF THE ABOVE SAID QUESTION WOULD SHOW THAT THE SAME DOES NOT RELATE TO T HE MERITS OF THE GROUNDS RAISED IN APPEALS PENDING BEFORE THE TRIBUNAL . THE SPECIAL BENCH HAS EXAMINED THE ABOVE QUESTION BEFORE IT FROM PARA S 1 TO 55 OF THE ORDER. T HE OBSERVATIONS MADE BY THE SPECIAL BENCH UPTO PARAGRAPH 55 OF THE ORDER RELATE TO THE QUE STION POSE D BEFORE IT AND WE HAVE ALREADY NOTICED THAT THE SAME WAS NOT RELATED TO THE GROUNDS RAISED IN THE APPEALS THAT WERE PENDING BEFORE THE TRIBUNAL, BUT RELATED TO THE LEGALITY OF THE ORDER PASSED BY THE HONBLE ACCOUNTANT MEMBER U/S 255(4) OF THE A CT. IN THE MISCELLANEOUS PETITION, THE REVENUE IS ALLEGING THAT CERTAIN MISTAKES HAVE CREPT IN, IN PARAGRAPH M/S. TULIP HOTELS PVT. LTD. 15 37, 38, 51 AND 52 OF THE ORDER (REFER RED TO IN PARAGRAPH 5(II) TO 5(VI) OF THE MISCELLANEOUS PETITION). IN OUR CONSIDERED VIEW , ALL THE OBSERVATI ONS MADE BY THE TRIBUNAL IN THE ABOVE SAID PARAGRAPHS RELATE TO THE QUESTION POSED BEFORE IT AND THE SAME DO NOT RELATE TO THE GROUNDS RAISED IN THE APPEALS THAT WERE PENDING BEFORE THE TRIBUNAL. HENCE, THE SAID OBSERVATIONS DO NOT AFFECT THE GROUNDS RAIS ED IN THE APPEALS AND ACCORDINGLY THE ARGUMENT TAKEN BY THE LD. DR THAT THE ALLEGED MISTAKES POINTED OUT IN THE PARAGRAPHS REFERRE D ABOVE AS AFFECTING THE APPEALS IS MISPLACED. ACCORDINGLY, WE DO NOT FIND ANY MERIT IN THEM. 15. THE REVENUE HAS POINTE D OUT IN PARAGRAP H 5(I) OF ITS PETITION THAT THE ORDER DATED 18 - 02 - 2010 PASSED BY THE HONBLE ACCOUNTANT MEMBER CANNOT BE CONSIDERED TO BE AN ORDER, BUT IT WAS ONLY AN OPINION EXPRESSED BY THE HONBLE ACCOUNTANT MEMBER. AGAIN THIS ISSUE IS RELATED TO THE QUESTION POSED BEFORE THE SPECIAL BENCH VIS - - VIS SEC. 255(4) OF THE ACT AND DOES NOT RELATE TO THE APPEALS THAT WERE PENDING BEFORE THE TRIBUNAL. 16. FINALLY, IN PARAGRAPH 5(VII) OF THE PETITION, IT HAS BEEN CONTENDED THAT THE LD D.R DID NOT GIVE HIS CONSENT, AS OBSERVED IN PARAGRAPH 56 OF THE ORDER PASSED BY THE SPECIAL BENCH. THE LD D.R, WHO HAD APPEARED BEFORE THE SPECIAL BENCH, HAS ALSO GIVEN AN AFFIDAVIT IN SUPPORT OF THIS CONTENTION AND THE RELEVANT PORTION OF THE AFFIDAVIT READS AS UNDER: - ..WITH REGARD TO THE ABOVE MENTIONED QUERY OF THE HONBLE SPECIAL BENCH, IT IS HEREBY SUBMITTED THAT THE DEPARTMENT HAS NOT GIVEN ANY CONSENT FOR DISPOSING THE APPEAL ON THE BASIS OF MAJORITY VIEW AND HENCE, IN THE PARA 56 OF THE ORDER OF THE ITAT DATED 3 0.03.2012 IT IS FALSELY MENTIONED WITH THE CONSENT OF PARTIES., WHEREAS, THE DECISION OF THE PRESIDENT OF SPECIAL BENCH OF HONBLE ITAT OF DISPOSING THE APPEAL ON THE BASIS OF MAJORITY VIEW WAS A DECISION WITHOUT THE CONSENT OF DEPARTMENT AND AN ARGUMEN T WAS MADE AGAINST THE CONSTITUTION OF THE SPECIAL BENCH, WHICH WAS NOT EVEN CONSIDERED. M/S. TULIP HOTELS PVT. LTD. 16 SINCE THE PRESENT MEMBERS CONSTITUTING THE BENCH WERE NOT THE MEMBERS WHO WERE PART OF THE SPECIAL BENCH THAT HEARD THE APPEALS, THERE IS A N INHERENT LIMITATION FOR TH E PRESENT BENCH TO VERIFY THE AVERMENTS MADE , ESPECIALLY WHEN EVEN THE LOG BOOKS OF THE THEN HON'BLE MEMBERS ARE NOT BEFORE US. WE ALSO NOTICE THAT THE AFF IDAVIT FILED BY THE ASSESSEE DOES NOT THROW LIGHT OR CLARIFY THE OBSERVATIONS MADE BY THE SPECIAL B ENCH WITH REGARD TO THE CONSENT GIVEN BY THE PARTIES , THOUGH THE MISCELLANEOUS APPLICATIONS HAVE BEEN OPPOSED BY THE ASSESSEE . BE THAT AS IT MAY, A CAREFUL PERUSAL OF THE OBSERVATIONS MADE BY THE SPECIAL BENCH IN PARAGRAPH 56 OF THE ORDER WOULD SHOW THAT THE CONSENT REFERRED TO IS THE CONSENT OBTAINED BY THE THEN HON'BLE PRESIDENT (WHO WAS INCIDENTALLY ONE OF THE MEMBERS CONSTITUTING THE BENCH) WHEREBY HE DECIDED THAT THE SPECIAL BENCH ITSELF SHALL FINALLY DISPOSE OF THE APPEALS ON THE BASIS OF MAJORITY V IEW. AT THE COST OF REPETITION, WE EXTRACT BELOW PARAGRAPH 56 OF THE ORDER BELOW: - 56. AT THE TIME OF HEARING, WITH THE CONSENT OF THE PARTIES AND IN THE INTEREST OF JUSTICE, IT HAS BEEN DECIDED BY THE HONBLE PRESIDENT TO FINALLY DISPOSE OF THE APPEAL S ON THE BASIS OF MAJORITY VIEW.. ACCORDINGLY, AS PER THE DECISION TAKEN BY THE HONBLE PRESIDENT IN THE INTEREST OF JUSTICE, THE SPECIAL BENCH PROCEEDED TO DISPOSE OF THE APPEALS IN ACCORDANCE WITH THE PROVISIONS OF SEC. 255(4) OF THE ACT. THUS, THE OR DER DATED 30.03.2012 PASSED BY THE SPECIAL BENCH DISPOSING THE APPEALS ON THE BASIS OF MAJORITY VIEW DOES NOT HINGE ON ANY CONSENT BEFORE IT , BUT ON THE DECISION OF THE THEN HON'BLE PRESIDENT, WHICH IS STATED TO BE ON A CONSENT; AND, IN ANY CASE, IT DOES NOT SUFFER FROM A MISTAKE WITHIN THE SCOPE AND AMBIT OF SECTION 254(2) OF THE ACT, AS OUR SUBSEQUENT DISCUSSION WOULD SHOW. M/S. TULIP HOTELS PVT. LTD. 17 17. IT IS PERTINENT TO NOTE THAT THE PROVISIONS OF SEC. 255(4) IS VERY CLEAR WITH REGARD TO THE MANNER OF DISPOSAL OF APPEALS WHEN THERE IS DIFFERENCE OF OPINION BETWEEN THE MEMBERS, I.E., THE POINTS OF DIFFERENCE SHALL BE DECIDED ACCORDING TO THE OPINION OF THE MAJORITY OF THE MEMBERS OF THE TRIBUNAL WHO HAVE HEARD THE CASE, INCLUDING THOSE WHO FIRST HEARD IT. HENCE THE TRIBUNA L IS REQUI R ED TO DI S POSE OF THE APPEALS IN ACCORDANCE WITH THE MANDATE OF THE PROVISIONS OF SEC. 255(4) OF THE ACT AND FOR THAT PURPOSE, IN REAL TERMS , THE CONSENT OF THE PARTIES IS NOT REQUIRED AT ALL. FURTHER, IT IS NOBODYS CASE THAT THE SPECIAL BENCH DID NOT DISPOSE OF THE APPEALS IN ACCORDANCE WITH THE MAJORITY VIEW OF THE MEMBERS WHO HEARD THE APPEALS. EVEN IN THE MISCELLANEOUS PETITIONS, THERE IS NO ALLEGATION THAT THE MAJORITY VIEW OF THE MEMBERS WAS NOT FOLLOWED IN DISPOSING OF THE VARIOUS GROUND S URGED IN THE APPEALS. VIEWED FROM THIS ANGLE, THE PRESENCE OR ABSENCE OF THE CONSENT OF THE PARTIES WILL NOT CHANGE THE DECISION RENDERED BY THE SPECIAL BENCH ON VARIOUS GROUNDS ON THE BASIS OF MAJORITY VIEW IN TERMS OF SEC. 255(4) OF THE ACT. SINCE WE ARE CONSIDERING THE MISCELLANEOUS PETITIONS FILED BY THE REVENUE U/S 254(2) OF THE ACT AND SINCE WE HAVE NOTICED THAT THE PRESENCE OR ABSENCE OF CONSENT OF PARTIES DOES NOT AFFECT THE DECISION RENDERED BY THE SPECIAL BENCH ON VARIOUS GROUNDS IN TERMS OF SEC. 255(4) OF THE ACT, WE ARE OF THE VIEW THAT THE ORDER PASSED BY THE SPECIAL BENCH CANNOT BE HELD TO BE SUFFERING FROM MISTAKES, WARRANTING RECTIFICATION WITHIN THE MEANING AND SCOPE OF THE PROVISIONS OF SEC. 254(2) OF THE ACT. ACCORDINGLY, WE ARE O F THE VIEW THAT THE SAID OBSERVATIONS DO NOT REQUIRE ANY MODIFICATION IN TERMS OF SEC. 254(2) OF THE ACT, AS THE APPEALS HAVE BEEN DISPOSED OF BY THE SPECIAL BENCH STRICTLY IN ACCORDANCE WITH THE PROVISIONS OF SEC. 255(4) OF THE ACT . HENCE WE ARE OF THE VI EW THAT THE ORDER PASSED BY THE SPECIAL BENCH DOES NOT REQUIRE RECTIFICATION IN TERMS OF PROVISIONS OF SEC. 254(2) OF THE M/S. TULIP HOTELS PVT. LTD. 18 ACT NOR IT CURTAIL S THE RIGHT OF THE REVENUE TO CONTEST THE ORDERS PASSED BY THE TRIBUNAL IN ACCORDANCE WITH THE MAJORITY VIEW IN TERM S OF SEC. 255(4) OF THE ACT BY FILING APPEALS BEFORE THE HONBLE HIGH COURT. 18. THE REVENUE HAS ALSO CONTENDED THAT IT HAD ARGUED AGAINST THE CONSTITUTION OF SPECIAL BENCH AND THE SAME WAS NOT CONSIDERED BY THE SPECIAL BENCH. THE MATTER RELATING TO TH E CONSTITUTION OF SPECIAL BENCH IS REQUIRED TO BE REPRESENTED BEFORE THE HONBLE PRESIDENT, WHO HAD CONSTITUTED THE SAME AND HENCE, EVEN IF THE REVENUE HAD ARGUED AGAINST THE SAME DURING THE COURSE OF HEARING BEFORE THE SPECIAL BENCH, THE SAID CONTENTIONS COULD NOT HAVE BEEN TAKEN COGNIZANCE OF BY THE SPECIAL BENCH. ACCORDINGLY, WE ARE OF THE VIEW THAT THIS CONTENTION OF THE REVENUE ALSO DOES NOT GIVE RISE TO ANY MISTAKE APPARENT FROM RECORD. 19. THE LD D.R HAS CONTENDED THAT THE SPECIAL BENCH TRIBUNA L SHOULD HAVE CONSIDERED CERTAIN DECISIONS OF COURTS, EVEN IT HAD NOT BEEN QUOTED BY THE REVENUE BEFORE THE SPECIAL BENCH. THIS CONTENTION, IN OUR VIEW, IS BEYOND THE SCOPE OF PETITION AND EVEN IF IT IS ACCEPTED FOR A MOMENT, THE SAME WOULD GIVE RISE TO U NENDING LITIGATION OF ANY MATTER BEFORE ANY FORUM. FURTHER, THE POWER GIVEN TO THE TRIBUNAL U/S 254(2) OF THE ACT IS CONFINED TO THE CORRECTION OF MISTAKES APPARENT FROM RECORD AND THE TRIBUNAL IS NOT ENTITLED TO REVIEW ITS OWN ORDER UNDER THE GARB OF REC TIFICATION OF MISTAKES APPARENT FROM RECORD. THE ABOVE SAID CONTENTIONS OF THE LD D.R WOULD RESULT IN REVIEW OF THE ORDER PASSED BY THE SPECIAL BENCH IN ACCORDANCE WITH THE MAJORITY VIEW OF THE MEMBERS. ACCORDINGLY, WE DECLINE TO ENTERTAIN THE SAID CONTE NTIONS OF THE LD D.R. M/S. TULIP HOTELS PVT. LTD. 19 20. IN VIEW OF THE FOREGOING DISCUSSIONS, WE ARE OF THE VIEW THAT THERE IS NO MERIT IN THE PETITION S FILED BY THE REVENUE. ACCORDINGLY WE DISMISS BOTH THE M ISCELLANEOUS PETITIONS FILED BY THE REVENUE. 21. IN THE RESULT, BO TH THE MISCELLANEOUS PETITIONS FILED BY THE REVENUE ARE DISMISSED . ORDER WAS P RONOU NCED IN THE OPEN COURT ON 1 2 .4 .2016 IN THE PRESENCE OF BOTH THE PARTIES . SD/ - SD/ - SD/ - (JOGINDER SINGH) (G.S. PANNU) (B.R.BASKARAN) JUDICIAL MEMBER A C COUNTANT MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 12 / 4 /20 1 6 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) ITAT, MUMBAI PS