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TMI Blog2018 (12) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... ther even otherwise such an issue may have been permitted to be raised by way of rectification, it is seen even if the submissions advanced by Shri Goyal could be examined to any extent so as to draw a point of distinction in the decision of the Supreme Court, even then, certainly a wholly new and debatable issue would be involved in such a scenario. One opinion having been formed by the CIT(Appeals) in his order dated 02.12.2013, it no longer remained open to him to engage in a fresh exercise to determine whether another opinion could be formed on the same issue. The position in law is fairly settled in view of the decision of the Supreme Court in the case of T.S. Balram, Income Tax Officer, Company Circle IV, Bombay Vs. Volkart Brothers, Bombay (1971 (8) TMI 3 - SUPREME COURT). Even if any point of debate may ever arise, then in absence of any legislative action preceding, the forum for that debate, would remain only before the highest Court of the land and before no other authority, Tribunal or Court. - Writ Tax No. - 394 of 2016 - - - Dated:- 3-12-2018 - Saumitra Dayal Singh,J. For the Petitioner : Abhinav Mehrotra For the Respondent : S.C.,Manish Goyal (I.T.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the revenue appears to have availed two remedies, by filing appeal before Income Tax Appellate Tribunal, which appeal came to be dismissed by order dated 07.08.2015, and also another remedy in the shape of rectification application under Section 154 of the Act. It was allowed by the Commissioner of Income Tax (Appeals), NOIDA by order dated 30.11.2015, more than three months after the original order dated 02.12.2013 came to be upheld by the Tribunal, by its order dated 07.08.2015. 6. It has also come on record that subsequently, the further appeal filed by the revenue against the order of the Income Tax Appellate Tribunal dated 07.08.2015 came to be dismissed by this Court vide order dated 04.04.2016 passed in Income Tax Appeal No.64 of 2016. That judgment itself became subject matter of appeal before the Supreme Court in Civil Appeal No.6020 of 2018 which appeal was also dismissed by the Supreme Court by judgment dated 02.07.2018. 7. In the aforesaid factual background, learned counsel for the petitioner has submitted that in the first place, the issue whether NOIDA is a corporation formed by a State enactment (which is a precondition for claiming exemption under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... According to him Clause (f) cannot be read in isolation to determine the eligibility of exemption for the applicability of T.D.S. provisions. The exemption has been made available to specific entities described in Clause (a) to (f) of clause (iii) of sub-section 3 of section 194A of the Act. He thus submits the NOIDA is neither a Tribunal that may fall within description of a banking company nor a financial company nor the Unit Trust of India nor any entity carrying business of banking. Also, no specific reason emerges from the relevant notification issued by the Central Government being No.3489 dated 02.04.2017 as may warrant inclusion of NOIDA as an entity having special status entailing the benefit of exemption under Section 194A(3)(iii) of the Act to it. He therefore submits, the bar created under section 154 does not apply and the decision of the Supreme Court is not binding on the revenue. 11. On the question of debatable issue being involved, Sri Manish Goyal would submit that once the NOIDA is not shown to be covered under the clear language of the exemption clause, it was no longer a debatable issue and the CIT(Appeals) had the jurisdiction to decide the rectification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed u/s 201(1) was set aside. Similar view has been taken by the Amritsar Bench of the Tribunal in the case of ITO (TDS) Vs. Branch Manager Jammu Kashmir Bank Ltd. Vide its order dated 24.04.2012 in ITA No.206 to 210/Asr/2011, the Tribunal has held that payment of interest by the bank to Jammu Development Authority (Jammu) is exempt u/s 194A(3)(iii)(f) and, hence, there can be no liability u/s 201(1A) on the bank and resultantly, the bank cannot be treated as an assessee in default u/s 201(1) and 201(1A). Likewise view has been taken by the Amritsar Bench of the Tribunal in ITO Vs. the Branch Manager, Jammu, Jammu Kashmir Bank Ltd., by its order dated 02.07.2012, a copy of which has also been placed on record. All these precedents support the proposition that the payment of interest by banks to the State Industrial Development Authorities does not require any deduction of tax at source in terms of Section 194A(3)(iii)(f) and, hence, the failure to deduct tax at source on such interest cannot lead to the banks being treated as assessee in default. No material has been placed on record to demonstrate that all/any of the above orders have either been reversed or modified in any man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law. (ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. The first stage is upto the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and the special leave petition is converted into an appeal. (iii) The doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subjectmatter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercisin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been invoked and pursued only with reference to the order of the Tribunal dated 7.8.2015 and no other. 16. Also, it may be noted, in Union of India v. Kamlakshi Finance Corporation Ltd., 1992 Supp (1) SCC 648 , the Supreme Court held : 6. ............................. ..................................It cannot be too vehemently emphasised that it is of utmost importance that, in disposing of the quasijudicial issues before them, revenue officers are bound by the decisions of the appellate authorities. The order of the Appellate Collector is binding on the Assistant Collectors working within his jurisdiction and the order of the Tribunal is binding upon the Assistant Collectors and the Appellate Collectors who function under the jurisdiction of the Tribunal. The principles of judicial discipline require that the orders of the higher appellate authorities should be followed unreservedly by the subordinate authorities. The mere fact that the order of the appellate authority is not acceptable to the department - in itself an objectionable phrase - and is the subject-matter of an appeal can furnish no ground for not following it unless its operation has been s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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