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TMI Blog2023 (6) TMI 809X X X X Extracts X X X X X X X X Extracts X X X X ..... te the adjustment made - Decided in favour of assessee. - ITA No.244/Rjt/2022 - - - Dated:- 14-6-2023 - Shri Waseem Ahmed, Accountant Member And Shri Siddhartha Nautiyal, Judicial Member For the Assessee : Shri G.R Sanghavi, A.R For the Revenue : Shri B.D. Gupta, Sr. D.R ORDER PER WASEEM AHMED ACCOUNTANT MEMBER: The captioned appeal has been filed at the instance of the Assessee against the order of the Learned Commissioner of Income Tax(Appeals), Rajkot, (in short Ld.CIT(A) ) arising in the matter of assessment order passed under s.143(1) of the Income Tax Act 1961 (here-in-after referred to as the Act ) relevant to the Assessment Year 2015-16. 2. The assessee has raised the following grounds of appeal: 1. That the learned CIT(A) NFAC Delhi has grievously erred in confirming the assessment of the returned income of Rs.NIL at a taxable income of Rs. 25,60,000 whilst processing us 143(1) of the Act. 2. That the learned CIT(A) NFAC Delhi has grievously erred in confirming that the adjustment so done confirmed by the CPC is within the jurisdiction vested us 143(1) of the Act. 3. That the appellant craves for leave to add, amend and or m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be permissible for the Assessing Officer to disallow a claim for deduction allowance or relief in cases where the claim is made on the basis of the decision of any High Court, Appellate Tribunal or other appellate authority even though a contrary view in the matter may have been expressed by another High Court or another Bench of the Tribunal or any other appellate authority. The fact that the claim is based on a decision which has not been accepted by the board will also not make any difference to this position. 9.1 From the above Instruction, there remains no ambiguity to the fact that no adjustment can be made by denying the deduction or relief claimed by the assessee based on the decision of Hon ble High Court or the Tribunal. It is equally important to refer the judgement of Ahmedabad Tribunal in the case of Gujarat State Lions Conservation Society v CIT wherein it has been held, 4. We have heard the rival contentions, perused the material on record and duly considered facts of the case in the light of the applicable legal position. 5. We find that the issue in appeal is covered, in favour of the assessee, by Hon'ble Calcutta High Court, in the case of CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preliminary issue raised by the assessee. 4. Having given our careful consideration to the rival submissions, we are inclined to uphold the objection taken by the assessee. 5. As observed by a Co-ordinate Bench of this Tribunal, in the case of Tej International (P.) Ltd. v. DCIT (69 TTJ 650), in the hierarchical judicial system that we have in India, the wisdom of the court below has to yield to the higher wisdom of the court above and, therefore, once an authority higher than this Tribunal has expressed its esteemed views on an issue, normally the decision of the higher judicial authority is to be followed. The Bench has further held that the fact that the judgment of the higher judicial forum is from a nonjurisdictional High Court does not really alter this position, as laid down by the Hon'ble Bombay High Court in the case of CIT v. Godavari Devi Saraf ( 113 ITR 589). For slightly different reasons and alongwith some other observations on the issue, which we shall set out a little later, we are in agreement with the conclusions arrived in this case. 6. That takes us to the question whether this decision stands overruled by the Hon'ble Bombay High Court' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e observations of Godavari Devi (supra), that an all India Tribunal acting anywhere should follow the decisions of any other High Court on the point, it was submitted by the counsel of the revenue that this observation itself would show that the High Court was aware of the fact that different High Courts were not bound by the decisions of each other and, as such, there may be contrary decisions of different High Courts on the same point. 9. The issue of consideration was thus confined to the question whether or not a High Court decision is binding on another High Court or not. That admittedly was the core issue decided by Their Lordships. As for the binding nature of non- jurisdictional High Court decisions on the Tribunal, the observations made by Their Lordships were no more than obiter dictum and in this very judgment, Their Lordships have held that even in the case of Hon'ble Supreme Court judgments, which are binding on all Courts, except Supreme Court itself, but 'what is binding, of course, is the ratio of the decision and not every expression found therein'. Their Lordships have also referred to the oft quoted judgment of the Hon'ble Supreme Court in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y under the Act. Until a contrary decision is given by any other competent High Court, which is binding on the Tribunal in the State of Bombay (as it then was), it has to proceed on the footing that the law declared by the High Court, though of another State, is the final law of the land .......... an authority like Tribunal has to respect the law laid down by the High Court, though of a different State, so long as there is no contrary decision on that issue by any other High Court ..... 13. It is thus clear that while the issue before the Hon'ble High Court in Thana Electricity Co. Ltd.'s case (supra) was whether or not a High Court should follow another High Court, whereas in Godavari Devi Saraf's case (supra), Their Lordships dealt with the issue whether or not a non-jurisdictional High Court is to be followed by a Bench of the Income-tax Appellate Tribunal. To that extent, and irrespective of some casual observations on the applicability of non- jurisdictional High Court judgments on subordinate courts and Tribunals, these two decisions deal in two different areas. As we have noticed earlier also, in Thana Electricity Co. Ltd.'s case, a note was taken of G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our distinguished colleagues. 6. Yet, the coordinate bench, in the case of B N Gamadia Parsi Hunnarshala Vs ADIT (supra), decided not only to ignore this binding precedent but also had the audacity to hold that it was an incorrect decision. The coordinate bench went to the extent of observing that We are unable to persuade ourselves to agree with the view taken by the Hon'ble Calcutta High Court (cited supra). A careful perusal of the language employed in section 11 of the Act makes it crystal clear that exemption is available only on the 'income (within the meaning of section 11 and not on the 'deemed income'). Consequently, the assessee cannot accumulate deemed income either under section 11(1)(a) or 11(2) of the Act . Much as we would like to refrain from commenting upon a coordinate bench decision, we cannot help quoting from the decision of the Hon'ble Supreme Court in the case of Asstt. Collector of Central Excise v. Dunlop India Ltd. [(1985) 154 ITR 172 (SC)] in which Hon'ble Supreme Court itself has quoted from the decision of House of Lords as under: We desire to add and as was said in Cassell Co. Ltd. v. Broome [1972] AC 1027 (HL), w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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