ORDER

Per Harish Chander : The matters were called. Shri G.L. Rawal, the learned advocate with Shri A. Samad, Advocate, has appeared on behalf of the appellants and Shri V.C. Bhartiya, the learned JDR, for the respondent. Shri Rawal drew the attention of the Bench to the Hon'ble Calcutta High Court judgements in the appellants' own case viz. 566/84 dt. 22.6.87 of M/s. Jainsons Clothing Corporation; 401/84 dated 2.6.87 of M/s. Jain Exports (P) Ltd. and 398/84 dated 22.6.87 of M/s Biswanath Traders & Investment (P) Ltd. By these orders the writ petitions filed by the appellants have been allowed. Shri Rawal stated that as per his information, the Revenue being not satisfied with the order passed by the Hon'ble Judge has filed an appeal before the Division Bench of Calcutta High Court. Shri Rawal further stated that he had appeared once in this matter before the Division Bench of the Calcutta High Court and to his information the appeal is still pending. He left it to the discretion of the Bench for passing appropriate orders in accordance with law.

2. Shri V.C. Bhartiya pleaded that he does not know whether any appeal is pending before the Division Bench or not. He further stated that as a third Member, a recommendation should be must for remanding the matter to the original Bench and appropriate order be passed on the basis of the writ petition.

3. We have heard both the sides. The point of difference was referred to the President vide order dated 28.1.87 whereas the judgement of the Calcutta High Court order is dated 2.6.87 in respect of M/s. Jain Exports (P) Ltd. and 22.6:87 in respect of M/s. Jainsons Clothing Corporation and M/s. Biswanath Traders & Investment (P) Ltd, which are after the reference of point of difference to the third Member. The reference was made in terms of Section 129 (5) of the Customs Act, 1962. Relevant sub-section is reproduced below :-

" 129 (C) (5) 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, but 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 for hearing on such point or points by one or more of the other members of the Appellate Tribunal, and such point or points shall be decided according to the opinion of the majority of the members of the Appellate Tribunal who have heard the case including those who first heard it"

Hon'ble Allahabad High Court in the case of Jan Mohammed Vs. C.I.T. reported in AIR 1953 Allahabad 119 had held in para 2 as under :-

"(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 assessee's 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 die point whether it could be presumed mat 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 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 r