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TMI Blog2018 (5) TMI 513X X X X Extracts X X X X X X X X Extracts X X X X ..... turn arises out of an assessment order passed by the Assessing Officer u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the Act ) dated 22.03.2013. 2. The Grievances raised by the assessee (revised) are as follows: 1) That the Ld. PCIT erred in exercising the power u/s. 263 by holding that the order passed u/s.143(3) is appeared to be erroneous so far as prejudicial to theinterest of the revenue. 2) That the A.O has accepted the IPA as capital receipt after examination of documents and relying on the jurisdictional High Court decision in the case of M/s. Rasoi India Ltd. As such the assessment order can't be held to be erroneous prejudicial to the interest of revenue to the extent of this issue. 3) That the IPA was received as per the West Bengal Incentive Scheme, 2000. The eligible certificate issued by the competent authority as per the West Bengal Incentive Scheme, 2000 approved as mega project under the said scheme, In which the IPA is received. The assessee is covered by the Jurisdictional High Court decision in the case of M/s. Rasoi India Ltd. and various other decisions of jurisdictional ITAT. Hence it cannot be held to be eithe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench that the judgment of Jurisdictional High Courtcase of CIT vs. Rasoi Ltd (supra) should be followed and for that he requested the Bench to give direction to the Assessing Officer to follow the judgment of the Jurisdictional High Court while giving appeal effect of the order of the ld. Principal CIT u/s 263 of the Act. However, ld. DR for the Revenue is mainly relied on the findings of the ld. Principal CIT and stated that no direction should be given to the Assessing Officer to follow the judgment of the Jurisdictional High Court. 5. We have given a careful consideration to the rival submissions and perused the material available on record, we note from the revised grounds of appeal reproduced above, the assessee has not preferred to challenge the direction of the ld. Principal CIT in respect of direction for unpaid liability for gratuity of ₹ 2,10,450/-. Therefore, the said direction is not disturbed. Giving to the next direction in respect of subsidy received of ₹ 196.77 lakhs is concerned, we note from a perusal of the assessment order of Assessing Officer that there is no whisper about the subsidy of ₹ 2,33,51,560/- received by the assessee from W.B.I.D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. M/s. Strassenburg Pharmaceuticals Ltd. G.A. 2042 of 2011, ITAT No.201 of 2011 dated 21.07.2011 holding that various amounts received by the assessee as subsidy under the W.B.I. Promotional Assistance is capital in nature. Reliance may also be placed on the case of KlarSehan Pvt. Ltd. vs. Assessing Officer wherein it was held that When financial crises is faced by some business, pumping in of fresh capital is required to help the business to tide over such financial crises. The Financial help, in this regard has, therefore, got to be considered as having an enduring effect of dragging in the business out of poor financial conditions being faced by the industries. The scheme of West Bengal Govt. does not at all envisage giving any subsidy in respect of specify items of expenses like sale tax, power, water etc. and hence the same cannot be regarded to be revenue nature. To conclude on our case, the subsidy in the form of Industrial Promotion Assistance received by way of refund of Sales Tax is not on account of subsidy in respect of specific item of expenses like sales tax, power, water etc. The incentive is directly linked with the investment made in setting up o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred to dispose of the whole or any part of the matter afresh unless forbidden from doing so by the statute. The statute does not say that such a direction cannot be issued by the appellate authority in a case of this nature. In interpreting s. 25A(1), we cannot also be oblivious to cases where there is a possibility of claims of partition being made almost at the end of the period within which assessments can be completed making it impossible for the ITO to hold an inquiry as required by s. 25A(1) of the Act by following the procedure prescribed therefor. We, however, do not propose to express any opinion on the consequence that may ensue in a case where the claim of partition is made at a very late stage where it may not be reasonably possible at all to complete the inquiry before the last date before which the assessment must be completed. 7. We note that judgment of the Hon ble jurisdictional High Court should be followed by the Tribunal and authorities below, for that we rely on the judgment of the Hon ble Bombay High Court in the case of Thane Electricity Supply, 206 ITR 727 (Bom.H.C), wherein it was held as follows: The law declared by the Supreme Court being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the very doctrine of stare decisis and also the various decisions of the Supreme Court which have interpreted the scope and ambit thereof. The fact that there is only one decision of any one High Court on a particular point or that a number of different High Courts have taken identical views in that regard is not at all relevant for that purpose. Whatever may be conclusion, the decisions cannot have the force of binding precedent on other High Courts or on any subordinate Courts or Tribunals within their jurisdiction. That status is reserved only for the decisions of the Supreme Court which are binding on all Courts in the country by virtue of Art. 141 of the Constitution. If for the sake of uniformity, the decisions of any High Court are to be accepted as a binding precedent by all Courts including other High Courts and Tribunals in the country, the very distinction between the precedent value of Supreme Court decision and the High Court decision will be obliterated. Such a situation is neither contemplated by the Constitution nor it is in consonance with the principles laid down by the Supreme Court and the doctrine of stare decisis. A conjoint reading of ss. 257 and 260 of the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven by the Tribunal or the Calcutta High Court to s. 33(6) of the Act, accepting those decisions by applying the test of beneficial interpretation does not arise.-Escorts Ltd. vs. Union of India (1992) 108 CTR (SC) 275 : (1993) 199 ITR 43 (SC) 8. Taking light from the aforesaid dictum of law laid down by the Hon ble Supreme Court and Hon ble High Court, we note that the assessee s plea before us is that while adjudicating the nature of subsidy received by the assessee whether it is capital/Revenue in nature. The Assessing Officer shall follow the ratio decidendi laid by the Hon ble Jurisdictional High Court in the case of Rasoi Limited (supra) in case if the facts and law are identical. With the aforesaid observation, we direct the Assessing Officer to give effect to the order of the ld. CIT in respect of both the issues after hearing the assessee and pass a speaking order. 9. We dismiss the present appeal of the assessee and do not comment on the order of the Principal CIT U/s 263 of the Act, for which the assessee is in appeal before us. 10 . In the result, the appeal of the assessee is dismissed with aforesaid observations. Order is pronounced in the open cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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