TaxTMI 
TaxTMI 
2016 (12) TMI 258
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.... entitled to any benefit after 4.4.1994 and were only entitled to such benefits as per incentive scheme upto 3.4.1994 of the goods and accordingly show cause notice was issued. An explanation was filed by the assessee, however, the AO was not satisfied and held that the judgment of apex court is squarely applicable and thus levied tax and interest. 3. Appeals were preferred before the Dy. Commissioner (Appeals), who went into the issue and allowed the appeals of the assessee. On a further appeal by the Revenue before the Tax Board resulted into dismissal of the appeals. 4. Learned counsel for the petitioner vehemently contended that identical issue came up before this court in the case of Assistant Commissioner, Commercial Taxes v. M/s. R.C. Oil Industries [STR No.118/2003] and Assistant Commissioner, Commercial Taxes v. M/s. Bajrang Bali Oil Industries [STR No.105/2007], and this court vide judgment dt 1.8.2013 quashed and set aside the orders passed by the Tax Board and upheld the stand of the Revenue taking into consideration the judgments of apex court in State of Rajasthan & Another v. M/s. Mahaveer Oil Industries & Others (1999) 4 SCC 357, and Gopal Oil Mills (supra). She c....
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....ies and M/s Bajrang Bali Oil Industries (supra), were also of District Nagaur, and when this court has already passed an order, question of transferring the present petitions on the same facts does not arise. She also contended that Dy. Com. (Appeals) and even the office of Tax Board is at Ajmer, and both the Appellate Authorities are situate within the jurisdiction of Jaipur Bench. 6.1 Learned counsel for the Revenue also contended that in the three cases where petitions were not filed before this court, were on account of smallness of tax effect, and question of discrimination does not arise. She also contended that the judgment in M/s. R.C. Oil Industries and M/s Bajrang Bali Oil Industries (supra), is a binding judgment on this court on the self same question, and to her knowledge the said judgment has attained finality and has not been challenged. She also relied upon Official Liquidator v. Dayanand & Others (2008) 10 SCC 1, C.K. Gangadharan & Another v. CIT, Cochin (2008) 8 SCC 739, Kusum Ingots & Alloys Ltd. v. Union of India & Another (2004) 6 SCC 254, State of Maharashtra v. Digambar (1995) 4 SCC 683, and Virendra Dangi v. Union of India & Others 1992 (1) WLC (Raj.) 419. ....
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....t at Jaipur in the year 2007, and it would not be appropriate to transfer such cases after almost nine years of pendency before this court. Be that as it may, the apex court in the case of Kusum Ingots & Alloys Ltd. (supra), took into consideration about the cause of action and it was held that where appellate/revisional order was passed, the petition could have been filed and admittedly in the instant case both the Appellate Authorities are situated in the jurisdiction of Jaipur Bench being at Ajmer. It would be appropriate to quote the relevant paras of the judgment :- "25. The said decision is an authority for the proposition that the place from where an appellate order or a revisional order is passed may give rise to a part of cause of action although the original order was at a place outside the said area. When a part of the cause of action arises within one or the other High Court, it will be for the petitioner to choose his forum. 26. The view taken by this Court in U.P. Rashtriya Chini Mill Adhikari Parishad (1995) 4 SCC 738), that situs of issue of an order or notification by the Government would come within the meaning of expression 'cases arising' in clause 1....
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....id not assail the order of Tax Board before this court, is no reason to accept the contention of the learned counsel for the assessee for the reason that there may be several factors, namely smallness of tax effect and other issues and this cannot be a reason for such an objection and the apex court judgments in the case of State of Maharashtra v. Digambar and C.K. Gangadharan & Another v. CIT (supra), supports the view that merely because in some cases the Revenue has not preferred appeal, that does not operate as a bar. It would be appropriate to quote the relevant paras from the judgment in C.K. Gangadharan's case :- "12. If the assessee takes the stand that the revenue acted mala fide in not preferring appeal in one case and filing the appeal in other case, it has to establish mala fides. As a matter of fact, as rightly contended by the learned counsel for the revenue, there may be certain cases where because of the small amount of revenue involved, no appeal is filed. Policy decisions have been taken not to prefer appeal where the revenue involved is below a certain amount. Similarly, where the effect of decision is revenue neutral there may not be any need for preferrin....
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....ate of Rajasthan v. Gopal Oil Mills. The appeal is disposed of accordingly. There will, however, be no order as to costs looking to the circumstances of the present case." 14. On perusal of the above it is clear that the apex court finally came to the conclusion that the benefit is only available upto 4.4.1994 and not later- on, and since in the instant cases, admittedly the assessment years involved are of 1995-96 on-wards, therefore, no benefit was available to the respondent assessees. Once the apex court has held that benefits are available upto 4.4.1994, no other authority could have taken any other view. 15. Now taking into consideration the arguments on merits, in my considered opinion when the self same question has been considered by this court in the case of M/s. R.C. Oil Industries and M/s Bajrang Bali Oil Industries (supra), where this court has extensively considered the judgments of apex court in M/s. Mahaveer Oil Industries and Gopal Oil Mills (supra), and has held that no benefit can be extended to the assessee on or after 4.4.1994, then the same view on the same issue and particularly when arising out of same impugned order, needs to be followed and it would be a....
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....assessees, who were before the Hon'ble Apex Court, then by no stretch of imagination, such a benefit beyond 04/04/1994 can be extended to the present respondents. The benefit for all assessees or for all similarly situated assessees would be extended only upto 04/04/1994 as upheld by Hon'ble the Apex Court and, therefore, in my view, both i.e. the Tax Board as well as the DC(A) have erred in holding it otherwise. 13. The Hon'ble Apex Court in the case of Dwarikesh Sugar Industries Ltd. Vs. Prem Heavy Engineering Works (P) Ltd. (supra) has reiterated the fact in the words that "when law is well settled by judicial pronouncements of the Supreme Court, then ignoring the same by subordinate courts amounts to judicial impropriety and judicial adventurism." and held as under :- "When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate ....