9911796707
TMI Blog2022 (12) TMI 250X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble non-jurisdictional High Court, is required to be followed even if it is contrary to a single bench judgment of another High Court in the case of Vedanta Ltd (supra). The impugned assessment order thus cannot be said to be barred by limitation. We uphold the impugned assessment order on this count, and decline to interfere in the matter on this jurisdictional ground. As we are deciding this issue on this short ground alone, all other contentions on merits remain open. The additional ground of appeal is dismissed. As no arguments were advanced by the parties on the remaining grounds of appeal, we deem it fit and proper to direct the Registry to fix the matter for hearing on the other grounds of appeal taken by the parties. - ITA No.2633/Mum/2015 , ITA No. 2738 /Mum/2015 - - - Dated:- 11-10-2022 - Pramod Kumar (Vice President)] and Sandeep S Karhail (Judicial Member) FOR THEAPPELLANT RONAK DOSHI ALONG WITH JINAL JAIN FOR THE RESPONDENT VATSALAJHA ORDER Per Pramod Kumar, VP 1. These cross appeals filed by the parties, are directed against the order dated 9th February 2015, passed by the learned CIT(A) in the matter of assessment un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 144C could only apply prospectively i.e. from assessment year 2010-11 onwards. It is then pointed out that this decision in Vedanta Ltd s case (supra) has been subsequently followed by several co-ordinate benches of this Tribunal our attention is then invited to Hon ble Bombay High Court s judgment in the case of BASF Ltd vs CIT [(2006) 280 ITR 136 (Bom)] wherein, following Hon ble Andhra Pradesh High Court s judgment in the case of N T Rama Rao [(1987) 163 ITR 453 (AP)], it has been held that circulars which are in force during the relevant assessment years are the circulars that have to be applied and the subsequent circulars either withdrawing or modifying the earlier circulars have no application. A reference is also made to Hon ble Bombay High Court s judgment in the case of Shakti Raj Film Distributers vs CIT [(1995) 213 ITR 20 (Bom)] in support of the same proposition. It is thus urged that in the light of Hon ble Madras High Court s judgment in the case of Vedanta Ltd (supra) and in the light of the applicable CBDT circulars, section 144C could not be pressed into service in the assessment year 2008-09, and, accordingly, not passing the impugned assessment order on or bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we, as indeed the parties before us, are oblivious to the fact that there is another decision of a non-jurisdictional High Court, in the case of Zuari Cements Ltd (supra), which holds exactly contrary to what has been held in Vedanta Ltd s case (supra). What is a critical factor, however, is the fact that the decision in the case of Zuari Cements Ltd (supra) is by a division bench. In Zuari Cement Ltd (supra), a Division Bench of the Hon ble non-jurisdictional High Court has categorically observed that the contention of the revenue that circular no.5/2010 of CBDT has clarified that the provisions of section 144C shall not apply for the assessment year 2008-09 and would apply only from the assessment year 2010-11 and later years is untenable in as much as the language of sub-section (7) of section 144C referring to the cutoff date of 1.10.2009 indicated an intention of the legislature to make it applicable, if there is a proposal by the Assessing Officer to make a variation in the income or loss returned by the assessee which is prejudicial to the assessee, after 1.4.2009. Therefore this particular provision introduced by Finance (No 2) Act 2009 will apply if the above condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the hierarchical judicial system. Therefore, once an authority higher than this Tribunal has expressed an opinion on that issue, we generally adopt and follow the same, even though, strictly speaking, these decision do not bind us. Such a High Court being a non-jurisdictional High Court, also does not very materially alter the position as laid down by Hon ble Bombay High Court in the matter of CIT v. Godavari Devi Saraf [(1978) 113 ITR 589 (Bom.)], even though that principle is subject to certain exceptions as elaborated in several subsequent decisions including in the case of Bank of India Vs ACIT [(2021) 125 taxmann.com 155 (Mum)] .While dealing with judicial precedents from non-jurisdictional High Courts, we may usefully take of observations of Hon'ble jurisdictional High Court in the case of CIT v. Thana Electricity Co. Ltd. [1994] 206 ITR 727 (Bom.)], to the effect The decision of one High Court is neither binding precedent for another High Court nor for the courts or the Tribunals outside its own territorial jurisdiction. It is well-settled that the decision of a High Court will have the force of binding precedent only in the State or territories over which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (SC) 20 , it has been reiterated that the above principle of law is well established and there is no doubt about that. Hon ble Supreme Court had, however, some occasions to deviate from this general principle of interpretation of taxing statute which can be construed as exceptions to this general rule. It has been held that the rule of resolving ambiguities in favour of tax-payer does not apply to deductions, exemptions and exceptions which are allowable only when plainly authorised. This exception, laid down in Littman vs. Barron 1952(2) AIR 393 and followed by apex Court in Mangalore Chemicals Fertilizers Ltd. vs. Dy. Commr. of CT (1992) Suppl. (1) SCC 21 and Novopan India Ltd. vs. CCE C 1994 (73) ELT 769 (SC), has been summed up in the words of Lord Lohen, in case of ambiguity, a taxing statute should be construed in favour of a tax-payer does not apply to a provision giving tax-payer relief in certain cases from a section clearly imposing liability . This exception, in the present case, has no application. The rule of resolving ambiguity in favour of the assessee does not also apply where the interpretation in favour of assessee will have to treat the provisions unconstitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Of course, as we have already noticed in our discussions earlier, so far as Hon ble High Courts are concerned, the decisions of one of the Hon ble High Court do not bind the other High Court, and all the Hon ble High Courts being in the same tier of judicial hierarchy, it is not the call of judicial discipline either that one High Court follows the other High Court. What is undisputed, however, is the fact that a full bench decision is to be placed at a level higher than a division bench decision and that a division bench decision from the same forum, is to be placed at a level above the single judge bench decision forum. There cannot be two opinions on this aspect of the matter, and that is a universally accepted judicial practice, whereas the principle of following the view in favour of the assessee, as we have seen in our analysis earlier, is subject to several riders. Therefore, so far as choice between a division bench decision of a non-jurisdictional High Court and a single judge bench of a non-jurisdictional High Court is concerned, it is clear that a simple objective criterion of choice will require the division bench decision to be preferred over the single judge bench ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
