Exemplary Cost to be imposed on Commissioner, if precedent not followed while filing appeal: Bombay High Court

[Manoj Agarwal]

In a judgement dated 19-01-2015 in the case of Commissioner of Income-tax-8 Versus Proctor & Gamble Home Products Ltd. [2015 (3) TMI 272 - BOMBAY HIGH COURT], the Hon’ble Bombay High Court while dismissing the appeal, passed stringent strictures and gave directions to the Revenue Authorities when the Revenue choose to persist with the Appeal, in spite of the issue being covered by the decision of the same High Court.

This judgement could be of great help for the tax professionals and business community when faced with similar unwanted litigation by any revenue authority which is being practiced mainly for harassment of the assessee. Even when the matter in the instant case relates to the Income Tax Act, 1961, the ratio of this judgement can be applied equally to ANY TAX litigation as a matter of principle. The relevant excerpts are reproduced below:

1. These appeals are filed by the Revenue in a very causal manner without indicating the basis of the challenge i.e. some distinction in facts from the order of the High Court or that the order of the jurisdictional High Court is a subject matter of challenge before the Apex Court.
2. Rule of law implies certainty of law and the State filing appeals on settled issues arbitrarily and/or without any application of mind. This filing of appeal without due application of mind leads to attempting to unsettle settled position without reasons.
3. This casual manner of filing appeals subjects an assessee to unnecessary expenditure and at times anxiety. Even the Revenue incurs substantial expenses in pursuing unwarranted cases, which are a sheer waste of public money.
4. In the above view, we were contemplating to impose costs on the Revenue. However, we noticed that on earlier occasion when costs were imposed on the Revenue, it seemed to matter little to the Officers, for after all the amount came out of the general pool of tax paid by the tax payers.
5. In the circumstances, we are now putting the Officers of the Revenue to notice, that in all cases including where appeals are filed, the Offices instructing the Counsel would review whether the appeal should at all be pressed in view of the Revenue having accepted the jurisdictional High Court's order on an identical issue and take necessary instructions from the Commissioner of Income Tax to withdraw and/or not press the appeal.
6. Alternatively, in case a conscious decision is taken to press the appeal, then an averment to the effect that either the case is distinguishable or an appeal has been preferred from the decision of this Court to the Apex Court if not averred in the appeal memo, then a further affidavit in support be filed indicating the reasons.
7. In the absence of the above, we will be COMPELLED to impose HEAVY/ EXEMPLARY COSTS to be PERSONALLY PAID by the jurisdictional - Commissioner of Income Tax under whose jurisdiction, the appeal is being filed and pressed in spite of the issue being settled by this Court and the same having been accepted by the Revenue.
8. It is expected of the Revenue that in the light of the above observations it would review all the appeals which are already filed and where the issue stands concluded by virtue of decision of this Court which has been accepted by the Revenue, withdraw such appeals.