COMMISSIONER OF INCOME TAX Vs. RAM MEMORIAL FOUNDATION

JUDGEMENT

(1.) THE petitioner seeks reference of the following question of law to the Court :

(2.) THE question arose with regard to the applicability of section 13(2)(a) of the IT Act. The Judicial Member held that the assessee was not entitled to exemption from tax with regard to taxability of interest of Rs. 5,200 which it received because the loan had been granted without adequate security. The Accountant Member passed a separate order and with regard to this question he observed that "the interest income involved being small, I have no comments to add." There was one other question which was involved in this case and there was a clear difference of opinion between the two members and the same was referred to the a third Member under section 255(4) of the IT Act. The assessee then filed a miscellaneous application contending that there was a mistake apparent on the face of the order as the Accountant Member ought to have given a decision on the application of his own mind, with regard to the aforesaid amount of Rs. 5,200. This application was considered and the Tribunal, including the Accountant Member, came to the conclusion that there was an error apparent on the face of the order and the Accountant Member then proceeded to deal with this issue on merits and came to a conclusion different from that of the Judicial Member. This question was also then referred to the third Member.

(3.) IT is against the aforesaid decision that the present petition under S. 256(2) has been filed. In our opinion, there is no merit in this partition. The initial order of the Accountant Member leaves no manner of doubt that, though he had written an order separate from that of the Judicial Member, he did not deal with the merits of the question involved. He did not differ from the Judicial Member only because the amount involved was only Rs. 5,200. The first order of the Accountant Member did not categorically state that he agreed with the conclusion of the Judicial Member and in fact by stating that because the amount involved is only Rs. 5,200 he had no comments to add, clearly implied that he had not considered the issue involved on merits. When the assessee brought this to the notice of the Tribunal, the Tribunal rightly came to the conclusion that there was an error of law because the Accountant Member had to consider the issue raised on merits. Whether there is an error apparent on the face of the order or not is question of fact and we agree with the Tribunal that no question of law arises. Dismissed.