TaxTMI 
TaxTMI 
2015 (1) TMI 1390
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....by the Hon'ble Supreme Court of India is bad in law and needs to be set aside. 3. That the order of the Assessing Officer as upheld by the Commissioner of Income Tax (Appeals) Chandigarh holding Rs. 60,58,021/- as expenses attributable to the income entitle to deduction u/s 80P(2)(d) on the basis of earlier years more so when the rule 8D was applicable to determine such expenses is bad in law and needs to be set aside. 4. That the order of the Assessing Officer as upheld by the Commissioner of Income Tax (Appeals) Chandigarh attributing out of total expenses of the head office to the earning of interest income is bad in law and needs to be set-aside. 5. That the order of the Assessing Officer as upheld by the Commissioner of Income Tax (Appeals) Chandigarh attributing the expenses to the earning of the interest income as per the provisions of Sec. 57(iii) is against the judicial decisions in the behalf. 3. At the time of hearing Ld. Counsel for the assessee submitted that Ground No. 1 was of general nature and Ground No. 2 to 5 deal with the same issue i.e; regarding disallowance to be made under section 14 A and then computing the deduction under section 80 P(2)(d). ....
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....owed or the decision of Hon'ble Delhi High Court in case of CIT Vs. Kribhco has to be followed. The issue regarding effect of dismissal of SLP was considered by the Hon'ble Supreme Court in case of V.M. Salgaocar And Bros. Pvt. Ltd. Vs. CIT, 243 ITR 383 the court pointed out following observations which is as under: 1. "Different considerations apply when a special leave petition under article 136 of the Constitution is simply dismissed by saying " dismissed", and an appeal provided under article 133 is dismissed also with the words "the appeal is dismissed." In the former case it has been laid down by this court that when a special leave petition is dismissed this court does not comment on the correctness or otherwise of the order from which leave to appeal is sought. But what the court means is that it does not consider it to be a fit case for exercise of its jurisdiction under article 136 of the Constitution. That certainly could not be so when an appeal is dismissed though by a non-speaking order. Here the doctrine of merger applies. In that case, the Supreme Court upholds the decision of the High Court or the Tribunal from which the appeal is provided under clause (3) of artic....
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....424 of 1999, has dismissed the appeal it has upheld the order of the High Court in the case of the assessment year 1980-81 and it cannot take a different view for the assessment year 1979-80. There appears to be substance in the submission of the assessee. This issue was again considered by Hon'ble Supreme Court in case of Kunhayammed And Others Vs. State of Kerala and Another (supra). In that case this is how the question arose : " A question of frequent recurrence and of some significance involving the legal implications and the impact of an order rejecting a petition seeking grant of special leave to appeal under article 136 of the Constitution of India has arisen for decision in this appeal." 10. The Hon'ble Court discussed at page 368 to 370 the provisions of Article 132 to 136 of the constitution and noted the procedure of deciding Special Leave Petition. Thereafter at page 372 it was observed as under: " It is not the policy of this court to entertain special leave petition and grant leave under article 136 of the Constitution save in those cases where some substantial question of law of general or public importance is involved or there is manifest injustice resulting f....
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....ourt does not comment on the correctness or otherwise of the order from which leave to appeal is sought. What the court means is that it does not consider it to be a fit case for exercising its jurisdiction under article 136 of the Constitution. That certainly could not be so when appeal is dismissed thought by a non-speaking order. Here the doctrine of merger applies. In that case, the Supreme Court upholds the decision of the High Court or of the Tribunal. This doctrine of merger does not apply in the case of dismissal of a special leave petition under article 136. When an appeal is dismissed, the order of the High Court merges with that of the Supreme Court. We find ourselves in entire agreement with the law so stated. We are clear in our mind that an order dismissing a special leave petition, more so when it is by a non-speaking order, does not result in merger of the order impugned into the order of the Supreme Court." The above very clearly shows that even in the decision quoted by Ld. Counsel for the assessee i.e; Kunhayammed And Others Vs. State of Kerala and Another(supra) also very clearly holds that if an SLP is dismissed in lemine then it would been that court has not ....
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....rticle 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the apex court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties. (vi) Once leave to appeal has been granted and the appellate jurisdiction of the Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be reversal, modification or merely affirmation. (vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of the High Court to entertain a review petition is lost thereafter as provided by sub-rule(1) of rule 1 of Order XLVII of the Cod....