k 908 itxa 1441.12 os.doc IN HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION rt INCOME TAX APPEAL NO.1441 OF 2012 Commissioner of Income Tax 8 ... Appellant. ou V/s. M/s. KEC Holdings Ltd. ... Respondent. C Mr. Arvind Pinto for Appellant. Mr. Nitesh Joshi i/b Mr. Atul K. Jasani for Respondent. h CORAM: S.C. DHARMADHIKARI AND ig A.A. SAYED, JJ. DATED : 28 NOVEMBER, 2014. H P.C. : y 1 This Appeal challenges order passed by Income Tax ba Appellate Tribunal dated 3rd April, 2012 deleting certain additions. om 2 It is submitted that there are five substantial questions of law and they are to be found at pages 8 to 10 of paper book. B 3 In relation to first two questions (a) and (b) it is fairly conceded that in case of this very Assessee Appeal was filed by Revenue being Income Tax Appeal No.221 of 2012. That was for Assessment Year 2003-04. same was dismissed by this Court on 1/5 ::: Downloaded on - 11/08/2015 16:00:17 ::: k 908 itxa 1441.12 os.doc 11th June, 2014. two questions therefore, cannot be termed as substantial questions of law. Appeal is dismissed. rt ou 4 However, Mr. Pinto submits that questions (c), (d) and (e) are substantial questions of law though they may not be happily worded. C 5 In relation to question (c) that pertains to deletion of addition h of Rs.58.75 lakhs included in total addition of Rs.104.97 lakhs. 6 ig In regard to that we find that Tribunal has examined these H questions as ground nos.2 and 3 and which are part of Assessee s Income Tax Appeal No.3735/Mum/2009 for Assessment Year 2004- y 2005. Assessee was aggrieved by order of Commissioner ba Income Tax (Appeals) VIII, Mumbai dated 4th March, 2009. om 7 Tribunal s attention was invited by advocate appearing for Assessee to order passed in Income Tax Appeal No.3734/MUM/2009 for Assessment Year 2003-2004. Mumbai B Bench delivered this order and Tribunal passed same in case of this very Assessee and for Assessment Year under question, Tribunal followed it and applied it because it found that ground no.2 of present Appeal is similar to ground no.4 of Income Tax Appeal 2/5 ::: Downloaded on - 11/08/2015 16:00:17 ::: k 908 itxa 1441.12 os.doc No.3734/MUM//2009 for Assessment Year 2003-2004 though there is difference in quantum. Ground no.3 of Appeal Memo in Income rt Tax Appeal No.3735/Mum/2009 is identical to ground no.5 of Income ou Tax Appeal No.3734/MUM/2009 for prior Assessment Year. Thus, Tribunal was of opinion that its factual findings in relation to C same Assessee and for prior Assessment Year, raising identical questions and issues would bind it. It was of opinion that rule of h consistency required it to maintain and follow its earlier order. We find that Assessing Officer and Commissioner of Income Tax ig both ignored Tribunal s orders in case of this Assessee. May H be it was not delivered or it was not available when they dealt with proceedings. However, in such cases and if issues are being y raised from year to year but are identical on facts, then, Officers ba ought to show some restraint and await adjudication by Tribunal. attempt to hastily conclude proceedings before it and om by not making appropriate endorsement so as to reserve right to exercise power at later stage results in Tribunal s time being taken and essentially wasted. From paras 9 to 11 of order of B Tribunal it has done nothing except applying its earlier view. facts are also identical. Thus barring difference in ground number and quantum everything was common and identical. 3/5 ::: Downloaded on - 11/08/2015 16:00:17 ::: k 908 itxa 1441.12 os.doc 8 narration of facts in Income Tax Commissioner s and rt Assessing Officer s would indicate that their conclusions are based on ou understanding of market by them and particularly by their perception of working of Finance Company and Banking Companies. C We do not see how such exercise could have been undertaken unless they were of firm belief that Assessee is attempting to h contravene any mandatory provision of Income Tax Act, 1961 or in Rules. In above circumstances, questions (c ) and (d) are not ig substantial questions of law. H 9 In relation to question (e) at page 10, we find that Tribunal y has set out facts, submissions and concluded that entire ba aspect has not been verified by Assessing Officer. Tribunal, therefore, remitted matter back to Assessing Officer to consider om and verify year in which provisions, noted by it in paras 19 to 21, have been made and whether same were added to profit in year of their creation. In such circumstances, caution by B Tribunal to Assessing Officer and to be exercised during course of verification and scrutiny as is found in paras 23 and 24 does not raise any substantial question of law. 4/5 ::: Downloaded on - 11/08/2015 16:00:17 ::: k 908 itxa 1441.12 os.doc 10 More so, when Mr. Joshi appearing for Assessee fairly states that Tribunal was not required to observe anything of nature to rt be found in para 30 of order under challenge. In such ou circumstances, we clarify that while verifying and scrutinizing claim in terms of Tribunal s directions, Assessing Officer shall not be C bound by Tribunal s observations in para 30 of impugned order. h 11 With above conclusion and clarification, we do not find that this Appeal deserves to be entertained. It does not raise any ig substantial question of law. It is nothing but factual assertion of H Assessee which has been accepted and in light of materials produced. If Tribunal was of opinion that facts and y circumstances peculiar to Assessee permit it to take particular ba legal course, then, we do not find that Tribunal s conclusions can be assailed as perverse or vitiated by any error of law apparent on om face of record. Consequently, Appeal fails, it is dismissed. No costs. B (A.A. SAYED, J.) (S.C. DHARMADHIKARI, J.) katkam 5/5 ::: Downloaded on - 11/08/2015 16:00:17 ::: Commissioner of Income Tax-8 v. M/s. KEC Holdings Ltd