ORDER :- This is a reference under S.66(1) of the Indian Income-tax Act and the question referred to us for opinion is as follows :

"Whether there was material to come to the conclusion that the money with which the bus was purchased was advanced to the wife by the husband so as to attract the operation of the section 16(3) (a) (iii) of the Income-tax Act?"

2. The assessee carries on business in Haldwani and Naini Tal. There was, however, a bus no.104 U.S.R. registered in the name of the assessees wife. The income from this bus amounting to Rs.2520/- during the year in question was paid to the wife of the assessee by the Kumaon Motors Union who were running the bus. The Income-tax Officer claimed that the bus belonged to the assessee and his wife was merely a benamidar for him. He treated the income from the bus as the income of the assessee. The assessee, however, denied that the bus belonged to him and asserted that the bus belonged to his wife who had purchased it out of the money which she had received from her father at the time of his death in 1934.

The assessee, however, informed the Income-tax Officer that he could not produce any evidence to prove how and when that money came into the hands of his wife. When the case was heard by the Income-tax Appellate Tribunal, the two learned Members differed on the point whether it could be presumed that the bus belonged to the assessee, there being no evidence or circumstance to establish the same. The point, on which they differed, was formulated as follows :

"The question for decision is whether in the circumstances, the presumption about the Bus belonging to the appellant could be legally drawn or not."

In accordance with S.5-A(7) of the Income-tax Act, the point was referred by the President of the Tribunal to the third Member, Shri B.N. Mukerjee, who agreed with S. Kalbe Abbas that the presumption could not be drawn. The finding recorded is in the following terms :

"My decision, therefore, as regards the first question is that, in the circumstances, the presumption about the bus belonging to the appellant could not be legally drawn."

On this finding, therefore, the majority opinion was that the Income-tax Officer was wrong in presuming that the bus belonged to the assessee and that the presumption could not legally be drawn on the materials on the record. After having recorded that finding, however, the third Member formulated a new point for himself and held that the bus must have been purchased from the assets transferred directly or indirectly to the wife by the husband. He relied on section 16 (3) (a) (iii) of the Income-tax Act. This point, however, had not been referred to the third Member and, under section 5-A (7) of the Act, he was competent to decide only the point referred to him. The relevant portion of section 5-A(7) of the Indian Income-tax Act runs as follows :

"If the members of a Bench differ in opinion on any point...........................if the members are equally divided, they shall state the point or points on which they differ and the case shall be referred by the president of the Tribunal for hearing on such point or points by one or more of the other members of the Tribunal............"

The third Member could, therefore, decide only the point that had been referred to him and he could not formulate a new point for himself on which he could base his decision. It appears to us to be further clear from a reading of the sub-section quoted above that after the decision of the point or points referred to him by the third Member the case should go back to the original Tribunal because so for as we can see the third Member has not been given any right to decide the appeal. According to S.5-A(6) of the Income-tax Act, the appeal must be decided by the Tribunal which must consist of a Bench of not less than two Members.

As we have already said, the point referred to the third Member was whether there could be a presumption legally drawn from the materials on the

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