JAGDISH SAHAI J. - This statement of case has been submitted and a question of law referred to us by the Income-tax Appellate Tribunal, Allahabad Bench (hereinafter referred to as the Tribunal), in pursuance of an order passed by this court under section 66(2) of the Indian Income-tax Act (hereinafter called the Act). The question of law is in the following words :
'Whether, in the circumstances of the case, there was an order of the Tribunal as contemplated by section 33(4) of the Income-tax Act read with rule 33(1) of the rules framed thereunder ?'
According to the statement of the case, this question arises in the following circumstances :
In respect of the assessment year 1945-46, the assessee, at whose instance this reference has been made, filed two appeals, one under section 33 of the Act and the other under section 14(1) of the Excess Profits Tax Act, to the Tribunal in respect of certain disallowances made by the Income-tax Officer and affirmed by the Appellate Assistant Commissioner. The appeals, being connected, were heard together on October 28, 1952. On October 31, 1952, the Account Member of the Tribunal dictated a draft order governing both the appeals. This draft order was placed before the Judicial Member who on November 7, 1952, appended certain observations to the draft order of the Account Member. Thereafter the draft order of the Accountant Member was fair typed and along with the order of the Judicial Member, placed before both the Members for their signatures. Both the Members signed their respective judgments. They, in their separate judgments, passed the same order, i.e., that the appeal should be dismissed. At the time when the Members signed their respective judgments, both the orders were before them.
Mr. Pathak has drawn our attention to section 33 of the Act and rules 2 and 33 of the rules framed thereunder. He has contended that the scheme of the Act and the rules is that there has got to be an order on behalf of the Tribunal as such and there cannot be two separate, though concurring judgments, by the Members who constitute the Tribunal. In the alternative it has been contended that even though the two Members had given their separate judgments, there should have been an order by the Tribunal formally declaring that the appeals have been dismissed. Section 33 of the act as also rules 2 and 33 are reproduced below :
'Section 33. Appeals against orders of Appellate Assistant Commissioner,
(1) Any assessee objecting to an order passed by an Appellate Assistant Commissioner under section 28 or section 31 may appeal to the Appellate Tribunal within dirty days of the date on which such order is communicated to him.
(2) The Commissioner may, if he objects to any order passed by an Appellate Assistant Commissioner under section 31, direct the Income-tax Officer to appeal to the Appellate Tribunal against such order, and such appeal may be made within sixty days of the date on which the order is communicated to the Commissioner by the Appellate Assistant Commissioner.
(2A) The Tribunal may admit an appeal after the expiry of the sixty days referred to sub-sections (1) and (2) if it is satisfied the there was sufficient cause for not presenting it within that period.
(3) An appeal to the Appellate Tribunal shall be in the prescribed form and shall be verified in the prescribed manner, and shall, except in the case of an appeal referred to in sub-section (2), be accompanied by a fee of one hundred rupees.
(4) The Appellate Tribunal may, after giving both parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit and shall communicate any such orders to the assessee and to the Commissioner.
(5) Where as the result of an appeal any change is made in the assessment of a firm or association of persons or a new assessment of a firm or association of persons is ordered to be made, the Appellate Tribunal may authorise the Income-tax Officer to amend accordingly any assessment made on any partner of the firm or any member of the association.
(6) Save as provided in section 66 orders passed by the Appellate Tribunal on appeal shall be final.'
'Rule 2. - In these rules, unless there is anything repugnant in the subject or context,.......
(iii) Bench means a Bench of the Tribunal constituted under sub-section (5) of section 5A;
(iv) Member means a Member of the Tribunal.
Rule 33. (1) The order of the Bench shall be in writing and shall be signed and dated by the Members constituting it.
(2) Where a case is referred under sub-section (7) of section 5A, the order of the Member or Members to whom it is referred shall be signed and dated by him or them as the case may be.'
In our judgment, there is no bar to the two Members of the Tribunal delivering separate, though concurring, judgments. A Tribunal cannot be distinct from the Members who constitute it. It can express itself only through its Members. No one else has a right to speak on behalf of the Tribunal. Therefore, so long as the Members of the Tribunal consider the matter and adjudicate upon it, it would make no difference that instead of there being an order on behalf of both of them, they passed two separate, though concurring, orders. There is nothing in the language either of section 33 or rule 2 or rule 33 which would justify the conclusion that it is not open to them to write separate judgments. What is necessary in the case of a court or Tribunal consisting of more than one judge or member is that they should collaborate amongst themselves and bring their minds together in order to judge the matter before them. If they differ, they should not pronounce separate judgments until by 'conference and discussion they have endeavoured to arise at an unanimous judgment.' (See Mahomed Akil v. Asadunnissa Bibee, In Subrahmanyan Chettiar v. Muttuswami Goundan the question that arose before the Federal Court was whether the judges of the Federal Court could deliver separate judgments. Section 214(4) of the Government of India Act, 1935, which contained the law on the point, was in the following words :
'(4) No judgment shall be delivered by the Federal Court save in open court and with the concurrence of a majority of the judges present at the hearing of the case, but nothing in this sub-section shall be deemed to prevent a judge who does not concur from delivering a dissenting judgment.'
The submission that was made before the Federal Court was that, inasmuch as the judgment contemplated was that by the while court, separate opinions by the judges who constitute it could not be given. This was repelled by Sir Shah Mohammed Sulaiman J., who held the it was quite within the competence of the judges of the Federal Court to write separate judgments even when concurring in the conclusion. We are, therefore, unable to accept Mr. Pathaks submission that it was not competent for the two Members who constitute the Tribunal to write different, though concurring, judgments. The submission that in any case there should have been an order on behalf of the whole Tribunal, like our 'Per Curiaem' or 'By the Court' orders, which are different from the opinion of the individual judges who constitute the bench hearing a case and inasmuch as no such order was prepared, there is no order of the Tribunal in the eye of the law, in our view, is equally untenable. It is not necessary that in a case where the conclusion of both the Members is the same, there should be a separate order on behalf of the Tribunal. The matter would have been different if they had disagreed and the case was referred to the President. Even in this court quite often when the judgments, though separate, are concurrent and the conclusion is the same, a separate order on behalf of the court as 'Per Curiaem' or 'By the Court' is not always prepared. We are, therefore, unable to accept this submission of Mr. Pathak also.
Finally, it appears to us that even if the effect of section 33 of the Act and rule 33 was (though we have held to the contrary) that there should have been in addition to the judgments of the two Members an order on behalf of the Tribunal which admittedly was not prepared in the present case, it would be an irregularity and not an illegality. To that extent, in our judgment, the provisions of section 33 and rule 33 would be directory and not mandatory. In Banwarilal Agarwalla v. State of Bihar, the Supreme Court observed as follows :
'As has been recognized again and again by the courts, no general rule can be laid down for deciding whether any particular provision in a statute is mandatory, meaning thereby that non-observance thereof involves the consequence of invalidity, or only directory, i.e., a direction the non-observance of which does not entail the consequence of invalidity, whatever other consequences may occur. But in each case the court has to decide the legislative intent. Did the legislature intend in making the statutory provisions the non-observance of this would entail invalidity or did it not To decide this we have to consider not only the actual words used but the scheme of the statute, the intended benefit to the public of what is enjoined by the provisions and the material danger to the public by the contravention of the same.'
In Rani Drig Raj Kuer v. Raja Amar Krishna Narain Singh, it was pointed out that the difference between a directory and a mandatory provision lies in the fact that the disobedience of the law in the former case does not invalidate the order but in the latter case it does. In view of the fact that the two Members had adjudicated upon the matter, had pooled their minds together, had come to the same conclusion and had given separate judgments which were properly sealed and signed, the mere absence of a formal order on behalf of the Tribunal would, if at all, affect the form and not the substance. At best it can be said that there was some slight mistake of procedure. It is well established that procedure is but the machinery of the law - the channel and means whereby law is administered and justice reached. It strangely departs from its proper office when, in place of facilitating, it is permitted to obstruct, and even extinguish, legal rights, and is thus made to govern where it ought to subserve (See Henry J. B. Kendall v. Peter Hamilton and Chhotey Lal Kishan Lal v. Commissioner of Income-tax.
For the reasons mentioned above, we find no merits in the contention of the learned counsel for the assessee and answer the question referred to us in the affirmative in favour of the department and against the assessee. The assessee shall pay the department a sum of Rs. 200 by way of costs of this reference. The fee of the learned counsel for the department is also assessed at the same figure.
Question answered in the affirmative.