1988 PLP 50 (SCMR)

SHAFIUR RAHMAN, J.‑‑Leave to Appeal was granted to the assessees of the income tax to examine the question of law whether the order of the Income‑tax Tribunal relating to their income‑tax assessment was complete as discernible from individual judgments recorded and signed by two out of three members of the Tribunal and placed on record. It had only to be communicated. The action of the Chairman thereafter in constituting a Special Bench to rehear the same matter was according to the appellants not in accordance with law. The brief facts of the case are that the appellants preferred appeals against the orders passed by the Commissioner of Income‑Tax (Appeals) Zone‑I, Lahore before the Income‑tax Tribunal. These appeals were heard by a Bench of three members of the Income Tax Tribunal on 3‑9‑1986 and the orders were reserved. On 22‑10‑1986 the appellants applied to the Tribunal for an order and in case it was not ready, to grant a stay of tax demand as the Income Tax Department was pressing them for the recovery. The Registrar of the Income Tax Tribunal by an order dated 27‑10‑1986 informed them as hereunder:‑ "The Counsel should be informed that the order will be communicated in due course. As for the grant of stay, regular application for grant of stay may be moved in accordance with rules, if so desired." The appellants thereafter made a regular application on which the Income Tax Tribunal granted them the required stay on 8‑2‑1987 to hold good till the decision of the appeal. The next event that happened was that the appellants received a notice dated 4‑3‑1987 for hearing of the appeals on 4‑4‑1987. After inspecting the record of the appeals, they discovered that full judgments had been prepared by two of the Members, namely, Mian Abdul Khaliq and Mr. Abrar Hussain Naqvi and had also been signed by them but the third Member recorded the following note on 29‑10‑1986:‑ There was an order recorded thereafter by Judicial Member‑II which reads as hereunder:‑ "The appeals were heard on 3‑9‑1986 and the judgment was reserved. The Judgment had been written by Judicial Member‑I Mian Abdul Khaliq and I had also expressed my views. The case was sent to learned Accountant Member on 29‑10‑1986. On 30‑10‑1986 he observed that he had since been transferred therefore was not in a position to express his views. The learned Accountant Member handed over the charge on 2‑11‑1986." On discovering these facts the appellants moved an application before the Tribunal on 31‑3‑1987 praying for the communication of the order already passed and signed on the ground that the certified copy of the order‑sheet showed that the order had been written by the learned Judicial Member‑I and the learned Judicial Member‑II had also expressed his views and so had the Accountant Member. It was concluded that as all the three Members had recorded their views while they were holding the office, a binding order of the majority of the Bench existed and it was required under the law to be communicated. The Income Tax Tribunal has thereafter become functus officio and a re‑hearing of it could not take place. The Registrar informed them on 19‑4‑1987 as hereunder:‑ "I have been directed by the Chairman to inform you that in reply to your letter dated 14‑4‑1987 written in ITA Nos.7000 to 7005/LB/85‑86, 7006 to 7011 LB/85‑86 and 7012 to 7017/LB/ 85‑86 that on perusing the order sheet he came to the conclusion that his learned predecessor rightly passed the order regarding constitution of a Special Bench of 5 Members under circumstances of these Appeals. The learned Chairman has directed me to inform you that the proposed order was in the shape of draft when Mr. M.A.M. Siddiqui was transferred. He also directed me to inform you that when the order is finalized an entry to the following effect is made and signed:‑ "Order signed issue copies" Since no such entry has been made there is no final order recorded, hence no copy can be issued." This order of the Registrar aggrieved the appellants who filed a Constitutional Petition in the High Court seeking a declaration that the order dated 19‑4‑1987 was beyond jurisdiction, without lawful authority and of no legal effect. They also sought a direction to the respondent Tribunal to give effect to the order and to communicate the same. They also sought an order prohibiting the Tribunal from giving effect to their order dated 19‑4‑1987. The learned Judge of the High Court dismissed the Constitutional Petition in limine holding as follows:‑ "Undoubtedly the learned Income Tax Appellate Tribunal did not communicate the order to the petitioners. The Accountant Member wrote no legal order and made conjectural observation to the effect, that had he written the order that would have been at variance to the order proposed to be made by the Tribunal. The order written by other Members of the Tribunal did not attain its final shape as it was only an order proposed to be made by the Tribunal." Mr. Nasim Farooqui, the learned counsel for the appellants, has relied heavily on subsection (7) of Section 133 and Rules 28 and 29 of the Income Tax Tribunal Rules. The premises on which his whole arguments are based are firstly that the Accountant Member by refusing to record a judgment in the words that he used should be taken to have expressed his dissent. That having been done, the second step in accordance with requirements of subsection ('f) of Section 133 should follow, namely" the point on which they differed shall be decided according to the opinion of the majority". The majority clearly being in favour of the appellants that should be taken to be the decision of the Tribunal. The third step, that is, of communicating the decision of the Tribunal is only a ministerial act and should follow as a matter of course without any application of mind, let or hindrance. Applying these principles to his case, the learned counsel seeks a declaration that the concurring opinion of the two Members had become final and irrevocable and had only to be communicated. According to the learned counsel any other view in the matter would open enormous opportunities for abuse of power and for uncertainty in proceedings of the Income Tax Tribunal. First of all, what the Accountant Member has recorded is so hypothetical and so conjectural that it cannot be either taken to be a judgment or a clear dissent in present when it was recorded. Therefore, it was a case where the third Member of the Tribunal had declined to express his formal opinion on the merits of the case which he had heard and which was reserved for judgment. In the absence of his opinion, apart from the satisfactoriness of the reason given by him, the case remained unconcluded and was justifiably put up before the Chairman who thereafter constituted a larger Bench. This appeal involves certain principles of great importance to the functioning of the Judge and the Presiding Officers of the quasi‑judicial Tribunals. A very important case on the point who arise be referred to is of Mahomed Akil v. Asadunnissa Bibee (1868) 9 WR 1 (FB) heard by seven Judges out of whom three had handed down signed judgments to the Registrar of the Court. Before the judgment could be delivered two of them had retired and one died. A Full Bench of nine Judges was convened to consider whether the draft of those three Judges could be accepted as judgment of the Court. The observations of Peacock C.J. to be found at p. 30 to the following effect are relevant in the contest:‑ "The mere arguments and expressions of opinion of individual Judges who compose a Court, are not judgments. A judgment in the eye of the law is the final decision of the whole Court. It is not because there are nine Judges that there are nine judgments. When each of the several Judges of whom a single Court is composed separately expresses his opinion when they are all assembled, there is still but one judgment, which is the foundation for one decree. If it were otherwise, and if each of the memoranda sent in on the present occasion were a judgment, there would be nine judgments in one case, some deciding one thing and some another, and each Judge would have to review his own judgment separately, if a review should be applied for." A similar question arose in Surrender Singh v. State of Uttar Pradesh AIR 1954 S C

191. As regards the judicial process culminating in the judgment the following observations were made:‑ "An important point therefore arises. It is evident that the decision which is so pronounced or intimated must be a declaration of the mind of the Court as it is at the time of pronouncement. We lay no stress on the mode or manner of delivery, as that is not of the essence, except to say that it must be done in a judicial way in open Court. But however it is done it must be an expression of the mind of the Court at the time of delivery. We say this because that is the first judicial act touching the judgment which the Court performs after the hearing. Everything else until then is done out of Court and is not intended to be the operative act which sets all the consequences which follow on the judgment in motion. Judges may, and often do, discuss the matter among themselves and reach a tentative conclusion. That is not their judgment. They may write and exchange drafts. Those are not the judgments either, however heavily and often they may have been signed. The final operative act is that which is formally declared in open Court with the intention of making it the operative decision of the Court. That is what constitutes the "judgment". Now up to the moment the judgment is delivered. Judges have the right to change their mind. There is a sort of 'Locus paenitentiae' and indeed last minute alterations often do occur. Therefore, however much a draft judgment have been signed beforehand, it is nothing but a draft till formally delivered as the judgment of the Court. Only then does it crystallize into a full‑fledged judgment and become operative. It follows that the Judge who "delivers" the judgment, or causes it to be delivered by a brother Judge, must be in existence as a member of the Court at the moment of delivery so that he can, if necessary, stop delivery and say that he has changed his mind. There is no need for him to be physically present in Court but he must be in existence as a member of the Court and be in a position to stop delivery and effect an alteration should there be any last minute change of mind on his part. If he hands in a draft and signs it and indicates that he intends that to be the final expository of his views it can be assumed that those are still his views at the moment of delivery if he is alive and in a position to change his mind but takes no steps to arrest delivery." As regards, the larger question of principle of public policy the following remarks made in the same judgment are relevant:‑ "There is a distinction between judgments which have not been delivered and so have not become operative and those which have. In the former case, the alteration is out of Court. It is not a judicial act. It is only a part of a process of reaching a final conclusion; also there is no formal public declaration of the Judges' mind in open Court and consequently there is no "judgment" which can be acted upon. But after delivery the alteration cannot be made without notice to the parties and the proceedings must take place in open Court, and if there is no alteration there is something which is final and conclusive and which can at once be acted upon. The difference is this. In the one case, one cannot know, and it would be against "(public policy to enquire, whether the draft of a judgment is the final conclusion of the Judge or is only a tentative opinion subject to alteration and change. In the second case, the Judge has publicly declared his mind and cannot therefore change it without notice to the parties and without hearing them afresh when that is necessary; and if there is no change the judgment continues in force. By change we mean an alteration of the decision and not merely the addition or subtraction of part of the reasoning." The law with regard to the decision of the Tribunal on a point on which the Members thereof differ, is not different than that applicable to a Bench of Judges of any Court for that matter. It provides that 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. This exercise of formulating Court's order or Tribunal's order in case of difference of opinion, cannot be left to any other individual or a Judge alone but has to be done by all the Judges constituting the Court or Tribunal for that particular case. They must agree with regard to the Court's order irrespective of their individual differences and must decide upon each point in' view of the legal provisions made for such a situation. Actually, the view advanced by the learned counsel for the appellants, is loaded) with mischief because the parties would be going behind and looking] to the tentative views expressed by the Judges while finalizing their own opinion in a case heard by them. We may agree with the learned counsel for the appellants that the act of communication of an order of the Tribunal is a ministerial act where the Tribunal has decided upon an order to be so communicated. We find that on the facts of the case, the established law, and also the ground of public policy implicit in the power, the appellants could not be granted the relief they were claiming with respect to their appeals before the Tribunal and it was rightly refused. The appeal, therefore, fails and is dismissed with no order as to costs. S.Q./A‑126/S Appeal dismissed.