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TMI Blog2018 (2) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... essee for which payment was made for purchase of software. Since, some agreements contain purchase of independent software and some of the agreement contains purchase of software alongwith hardware, every agreement would have to be examined for which 44 Special Benches would have to be constituted. Application for constitution of Special Bench made by the Revenue ought to be rejected and the appeals be heard by the regular Bench of the Hon'ble Tribunal. We direct accordingly. - ITA No.4672/M/2007, ITA No. 837/M/07,, ITA No. 3431 to 3437/M/07 , ITA No. 3438-3439/M/08, ITA No. 3440 to 3444/M/07 , ITA No. 4244/M/08 - - - Dated:- 3-1-2018 - SHRI R.C.SHARMA, AM AND SHRI C.N. PRASAD, JM ITA No. 4246/M/08, ITA 4247/M/07 , ITA No. 4248/M/08, ITA 4249 to 4253/M/07 , ITA No. 4254/M/08, ITA 4255/M/07 , ITA No. 4256 to 4260/M/08, ITA 4261/M/07, ITA 4278 4279/M/08, ITA No. 4280 to 4283/M/08, ITA 4284to4287/M/08, ITA No. 4291/M/08 , ITA 4305-4306/M/08, ITA No. 4307/M/08, ITA 4308-4309/M/08, ITA No. 4310/M/08 , ITA No.4673 to 4677/M/2007, ITA No.4873/Mum/2007, ITA No. 4874-4877/M/07, ITA No.4878/Mum/2007 , ITA No.4899 to 4901/Mum/2007, ITA No. 4902/M/07 , ITA No.4903/Mum/2007, ITA No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated August 8, 2017 directing the Hon'ble Tribunal to dispose the appeals afresh within a period of 6 months. The relevant extract of the same is reproduced as under for ready reference: In the light of the above, we dismiss these petitions. We clarijyjhat the appeals of the Revenue which stand restored to file of the Tribunal shall be heard as expeditiously as possible and should be disposed of within a period of six months from the date of receipt of a copy of this order. We stipulate this outer limit in the light of the controversy involved in these appeals and which may arise in subsequent appeals in the case of this very assessee or others in identical business. While we direct the Tribunal to dispose of the appeals within six months, we will not extend the time under any circumstances. We clarify that all contentions of all the parties are open. They shall be open for being agitated, raised and considered by the Tribunal afresh. While deciding the appeals pursuant to our order and directions, the Tribunal shall not be influenced in any manner by any finding and conclusions in the order dated 6th September, 2013 or 18th November, 2016. We clarify that this order d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. Unless there are compelling reasons for not following the earlier view, such as, if it is inconsistent with judgment of the Hon'ble Supreme Court or that of the jurisdictional High Court or earlier decisions of the same rank; or if it is sub silentio; or if it is rendered per incuriam in the sense that it is patently inconsistent with the statutory or settled legal position, the same should be respected and adhered to by the subsequent benches so that consistency in the approach of the tribunal is achieved. The above referred exceptions can be classified into two categories. First, when there is a direct contrary judgment of the Hon'ble Supreme court or that of the Hon'ble jurisdictional High Court on the point, rendered prior to or after the earlier tribunal order, the later Bench would be fully justified in differing from the earlier contrary view and following the higher wisdom. Second, when the subsequent bench perceives earlier view to be rendered per incuriam or sub silentio etc., the right course for it is to make a reference to the President of the tribunal for constitution of a Special Bench on the point so that the larger bench may consider whether the earl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts of the case in totality and object of the section 40A(3) of the Act, we are ofthe considered view that this case does not require the reference to the Special Bench. Hence in our considered view this case does not require to be referred to the Special Bench. 9. Ld. AR also relied decision of the Hon'ble Gujarat High Court in the case of Affection Investments Ltd. v. ACIT (326 ITR 255) (Guj.) wherein it has been held that where the facts of the case are similar to an earlier decision of the Tribunal, no co-ordinate bench has the power to record a contrary decision to the one reached by the earlier co-ordinate bench of the Tribunal. It was held that in case the subsequent co-ordinate Bench did not agree, the only recourse before it was to refer the matter to the President for constitution of Special Bench. Thus, the Respondent submitted that as per the decision of Gujarat High Court, the recourse available was with the dissenting subsequent Bench to refer the case to the Hon'ble President for constitution of Special Bench. 10. It was also submitted by learned AR that the reference of MA in the request filed by revenue was incorrect for the reason that MA applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'ble Supreme Court in the case of CIT Vs. Vegetable Products (1973) (188 ITR 192) (SC) wherein it has been held that where there are two possible views, the view favourable to the assessee must be adopted. With regard to the merit of the case, it is open to the Revenue to argue before the Regular Bench, if there are favourable or unfavourable decisions other than jurisdictional High Court decision. At the time of hearing on merit, it is open to the Revenue to take and the types of contentions alongwith decision of Co-ordinate Bench of the Tribunal and non-jurisdictional High Courts. So far as reliance of Revenue on the decision of CEGAT in case of Shri Ram Rayons (supra) in support of the request for reference to Special Bench is concerned, we found that the said case law is not on the fact of reference to Special Bench. In this case law, it is only mentioned that the said matter was heard by the Larger Bench consisting of five members. Thus, the said decision is not relevant in the present case and moreover it is of a parallel appellate authority. 13. Furthermore, we found that out of 127 appeals pending before the Tribunal about 50 appeals were having tax effect of less th ..... 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