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TMI Blog2017 (7) TMI 1384X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the Assessment Year, Assessing Officer or assessee will not warrant a filing of appeal. Where the relied upon order has been accepted by the Revenue and they are able to show by either making an averment in the appeal memo or filing an affidavit showing distinctive features either in facts or in law which would warrant different considerations for entertaining the appeal, the Court would entertain the appeal. However, the Revenue cannot pick and choose the matters which it would agitate before a Higher Forum without there being any distinctive features in fact and /or law. Even if the principle of res judicata does not apply in tax matters, yet consistency and certainty of law would require the State to take uniform position and not change their stand in the absence of change in facts and/or law. In this case, admittedly there is no change in the facts and/or in law. As held by the Apex Court in C.K.Gangadharan v. CIT [ 2008 (7) TMI 10 - SUPREME COURT ] and in CIT vs. J.K. Charitable Trust [ 2008 (11) TMI 8 - SUPREME COURT ] this challenge would depend upon the appellant pointing out some distinction in fact and/or law which would justify filing of an appeal. The Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of CIT vs. Raja Benoy Kumar Sahas Roy by the Hon'ble Supreme Court in (32 ITR 466) ? 3. Whether in the facts and circumstances of the case and in law the Tribunal erred in not appreciating that there is no warrant at all for extending the meaning of agriculture to all activities which have relation to the land or are in any way connected with the land as has been held in the case of CIT vs. Raja Benoy Kumar Sahas Roy by the Hon'ble Supreme Court in (32 ITR 466) ? 4. Whether in the facts and circumstances of the case and in law the Tribunal erred in holding that the following receipts of the assessee were in the nature of agricultural income defined in Section 2(1A) of the Income Tax Act without appreciating that neither land nor agricultural operations performed thereon are the direct and immediate source of such receipts. a) Interest income of ₹ 16,44,729/- and penalty of ₹ 12,82,855/- received by the assessee on agricultural sales dues. b) Transit pass fee of ₹ 29,98,677/- received by the assessee from the purchaser for the movement of forest produce. 5. Whether the Appellate Authorities below have perversely appreciated the factual and legal mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377 ITR 69 (Bom.). 4. Mr.Parchure, learned Senior Counsel, in response, very fairly states that there are no distinction in facts and in law in the subject Assessment Year i.e. 2002-03 to that existing when the earlier order of the Tribunal dt.22.8.2006 relating to Assessment Year 2003-04 was passed. However, it is his submission that, in matters of Tax laws, there is no question of res judicata. Thus, the Revenue is entitled to file an appeal from the orders of the Tribunal even if no appeal is filed from the Order of the Tribunal on which the impugned Order being challenged relies upon. Further he submits that the decisions of this Court in not entertaining the Revenue's appeal on the ground that the order being challenged relies upon the earlier order which has been accepted by the Revenue were all rendered at the stage of admission. This appeal is today for final hearing and therefore, the matter should be adjudicated upon on merits. 5. As against above, Mr.Thakar, learned Counsel for the Revenue/assessee submits that, in terms of Section 260A(4) of the Act, even if appeal has been admitted on substantial question of law, at the final hearing of the appeal, it is open to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of final hearing. However, we must make it clear that there can be no two opinions on the issue that even if appeal has not been filed from an earlier order, which has been relied upon by the impugned order, the appellant could file an appeal to this Court from the second order. However, this filing of appeal from the second order has to be supported by the averments/submissions showing distinction in the facts and/or in law which would evidence that the impugned order give rise to substantial question of law in the backdrop of the distinctive features in the subsequent order, even though no appeal has been filed from the earlier order. No such averment is found either in the appeal memo nor any such submission has been made at the bar. This Court has consistently taken a view that one of the important elements of rule of law is certainty of law. Therefore, mere change in the Assessment Year, Assessing Officer or assessee will not warrant a filing of appeal. Therefore, where the relied upon order has been accepted by the Revenue and they are able to show by either making an averment in the appeal memo or filing an affidavit showing distinctive features either in facts or in law w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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