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Section 255, of the Income-tax Act, 1961 [Corresponding to section 5A(6) of the Indian Income-tax Act, 1922] - Appellate Tribunal - Procedure of - Assessment years 1951-52 to 1956-57 - Whether neither main provision of section 5A(6) of 1922 Act nor either of two provisos contemplates a Bench or a special Bench of four Members and, therefore, disposal of an appeal by a Bench consisting of four Members not being authorised by statute was invalid - Held, yes FACTS For the assessment years 1951-52 to 1956-57, the assessee was assessed as an individual. The assessee claimed that half of the income belonged to a separate trust. This contention raised by the assessee was overruled by the ITO. The assessee was assessed for the whole of the income from the business. This view of the ITO was upheld in appeal and in further appeal by the AAC and the Tribunal respectively. However, before deciding the matter on merits, a question came up before the Court. On reference was whether the order passed by the Tribunal under the signature of four of its members was valid in law. On reference : HELD It will be seen that sub-section (6) of section 5A contemplates constitution of Benches in three different ways. Ordinarily, a Bench should consist of two Members-one Judicial Member and one Accountant Member. The two provisos to sub-section (6) provide exceptions in certain cases. According to the first proviso, the President or any other Member of the Tribunal specially authorised by the Central Government may sit alone, and dispose of cases of small valuation. The second proviso permits constitution of special Benches. A special Bench consists of three Members. There are two ways of constituting special Benches. A special Bench may consist of two Judicial Members and one Accountant Member. Or, a special Bench may consist of one Judicial Member and two Accountant Members. It will be seen that neither the main provision of sub-section (6) of section 5A, nor either of the two provisos contemplates a Bench or a special Bench of four Members. Disposal of an appeal by a Bench consisting of four Members is not authorised by the statute. The applicant was right in his contention that the…

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