Mrs. Sujata V. Manohar, J. - (1.)A public interest Writ Petition No. 2350 of 1996 was filed in the Bombay High Court by the Income-tax Appellate Tribunal Bar Association through its Secretary challenging the validity of a letter dated 5-11-1996 purporting to modify the powers of the President of the Income-tax Appellate Tribunal regarding posting and transfer of Members of the Income-tax Appellate Tribunal. The petitioners contended that they were interested in fair and impartial administration of the income-tax law and in upholding the independent working of the Income-tax Appellate Tribunal, the Rule of Law and independence of the income-tax judiciary. By an interim order, the High Court restrained the under Secretary, Ministry of Law, Government of India and the Union of India who were respondents 1 and 2 therein from interfering with the powers of the President of the Income-tax Appellate Tribunal to assign work to any Member, to constitute Benches and to require a Member to sit on any Bench wherever situate, and for such duration, as he may deem necessary. This petition was transferred to this Court. This Court by its order dated 31-3-1997 confirmed the interim order passed by the High Court. Another similar petition filed before the High Court of Andhra Pradesh was also transferred to this Court. Both these petitions are pending.
(2.)In the pending petitions the present application is being made by the Income-tax Appellate Tribunal through its President. The occasion for making this application has arisen on account of an order dated 23rd of October, 1997 passed by a Bench of the Income-tax Appellate Tribunal consisting of two Members, one judicial and one accountant. The said order was passed in the case of Smt. Neerja Birla v. Assistant Commissioner of Income Tax for the assessment year 1992-93. As a result of the said order, the assessee who claimed a benefit amounting to Rs. 1,50,00,000 was denied that benefit by the Tribunal which decided the appeal in favour of the revenue.
(3.)Thereafter the President of the Tribunal received a letter dated 30th of December 1997 from Shri V. K. Agarwal, who was then the Law Secretary, Ministry of Law and Justice, Government of India. In the letter, the then Law Secretary, who is the first respondent before us, referred to the decision of the Tribunal in the case of Neerja Birla v. Assistant Commissioner of Income Tax heard and decided by Shri R. V. Easwar, Judicial Member and Shri M.V.R. Prasad, Accountant Member sitting together. He observed that the Judicial Member dictated this judgment in this matter some time in August, 1997 and duly corrected and signed it. However, a contrary orrder dated 23rd October, 1997 was pronounced by the Accountant Member which was signed by both the Members. Copies of both the "Orders" were enclosed. The first respondent then went on to say, ". . . . . . . . . . .Thus the two orders have taken a contradicting stand. The aforesaid circumstances disclose judicial impropriety of highest degree. It is intriguing as to how two contradicting orders got dictated in the same matter by the two Members, while one order is by the Judicial Member, the other is by the Accountant Member and signed by both. You may like to enquire into the matter and send a report to the Government within 10 days from the date of the receipt of this letter. You may also like to suggest the action that may be taken in the matter and the Members against whom it may be taken. Further, while submitting the report, a copy of the 'file order sheet' indicating the name of the Member to whom the case was allotted for writing the judgment may also please be sent to the Government."