TaxTMI 
TaxTMI 
2018 (4) TMI 1482
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....a capital expenditure and not revenue expenditure? (ii) Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in holding that the profit of US and UK branches is not taxable in India and should be excluded from the taxable profit of the assessee? (iii) Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in restoring the issue of taxability of the sale tax exemption benefit of Rs. 58 crores availed by the assessee to the file of the Assessing Officer for deciding afresh which has not been accepted by the Revenue? 3. After Mr. Chhotaray, in support of the appeal read the aforesaid three questions of law, we specifically asked Mr. Chhotaray in respect of the question no.(iii), whether the Assessing Officer passed any order after the impugned order dated 22nd October, 2014 of the Tribunal, restoring the issue to him for fresh consideration. Mr. Chhotaray, learned Counsel for the Revenue, on instructions from the Assessing Officer, informed us that no effect has been given to the impugned order of the Tribunal and the matter is still pending with the Assessing Officer. This was disputed by the l....
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....nsidering the quantum of pending income tax appeals. Moreover, the absence of the Assessing Officer being fully updated with all facts may lead to waste of time and effort on all sides. This for the reason that in case, we hold in favour of the Revenue on the present question no.(iii) in this appeal, then, the entire exercise done consequent to the impugned order of the Tribunal i.e. passing of an order dated 29th July, 2015 of the Assessing Officer and further orders in appeal therefrom would all be rendered infructuous. This as the basis / foundation of the order dated 29th July 2015 and subsequent orders in appeal will be set aside.Besides, being most unfair to the respondent assessee. 7. In the above view, we direct the Assessing Officer to file an affidavit pointing out the circumstances which led to his giving incorrect fact to the Counsel for the Revenue leading to unnecessary waste of time and effort. 8. We adjourn the hearing of this appeal to 26th February, 2018 to enable the filing of the affidavit. 9. We also direct Mr. Chhotaray, learned Counsel appearing for the Revenue to serve a copy of this order upon the jurisdictional Chief Commissioner of Income Tax and also ....
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....acts involved in the matter but on arguing point of law. In fact, recently in the case of CIT v/s. JCW Logistic Park Pvt. Ltd., (Income Tax Appeal No. 613 of 2015) decided on 11th April, 2018, we had occasion to observe as under: " 5: We are pained to record this most unreasonable attitude on the part of the Advocate for the Revenue, seeking to reargue settled concluded issues, without having obtained any stay from the Apex Court. This results in unnecessary wastage of the scarce judicial time available in the context of large numbers of appeals, awaiting consideration. We would expect .... an Advocate to act with responsibility as an Officer of the Court and not merely argue for the sake of arguing when an issue is clearly covered by the decision of a Coordinate bench of this Court and take up scarce judicial time. The Advocate must bear in mind that this a Court of law and not an University/ College debating Society, where debates as held for academic stimulation. We deal with real life disputes and decide them in accordance with the Rule of Law, of which an important limb is uniformity of application of law. This on the basis of judicial discipline and law of precedents." The ....
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....n the standard of conduct expected of an Advocate. 6. We also note with dismay that the affidavit dated 23rd April, 2018 of the Assessing Officer stating that as no questions were asked about giving effect to the order of the Tribunal dated 22nd October, 2014 by the Counsel for the Revenue, therefore, there was no occasion to discuss the same. This to say the least, is not expected on the part of the Assessing Officer as he is the person expected to brief and instructs the Revenue's Counsel. It is his primary duty to upgrade the Counsel with regard to all facts involved in the matter, more particularly facts which may have transpired after the passing of the impugned order of the Tribunal. The Assessing Officer must appreciate that as the Officer of the State, he is the client. Therefore, the Assessing Officer does not meet the Revenue's Counsel as a witness who is required only to answer the questions posed to him by the Advocate. It is, indeed the job of the Assessing Officer to inform Advocate appearing for the Revenue of all facts, so as to ensure that justice is done. We have observed that when matters are taken up, the Counsel for the Revenue do not have any assistan....
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....s client the benefit of his learning, his talents and his judgment, but all through he never forgets what he owes to himself and to others. He will not knowingly misstate the law, he will not willfully misstate the facts, though it be to gain the cause for his client. He will ever bear in mind that if he be the Advocate of an individual, and retained and remunerated (often inadequately) for his valuable services, yet he has a prior and perpetual retainer on behalf of the truth and justice; and there is no Crown or other licence which in any case, or for any party or purpose, can discharge him from that primary and paramount retainer." In this case, the Counsel is appearing for the State. The responsibility of an Advocate appearing for the State is much greater to ensure that justice is done and common people/ citizens are not harassed. This conduct on the part of the Revenue's Counsel of not taking proper instructions and arguing matters as they perceive a debatable point involved, does lead to undue harassment of the tax payers-Respondent. 8. We have for a long time, taken into account that many of these are fresh entrants to the bar and in due course, would learn the standa....