TaxTMI 
TaxTMI 
2019 (7) TMI 1151
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....nt year 2009-10. 2.The following substantial questions of law have been raised for our consideration:- "i. Whether under the facts and circumstances of the case the Tribunal was right in upholding the order of the lower authorities that the share of the beneficiaries is indeterminate and therefore the appellant is liable for tax at maximum marginal rate? ii. Whether on the facts and circumstances of the case, the Tribunal was right in holding that the appellant is liable to deduct tax at source in respect of interest on borrowings, disregarding the fact the individual beneficiaries for whose benefit the funds have been borrowed do not have taxable income and are not liable to deduct tax at source? iii. Whether on the facts and circum....
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.... of dealing such a situation. Firstly, if the decision is per incurium, a finding to the said effect has to be given. Secondly, the Court or the Tribunal can refuse to follow the decision by distinguishing it on the factual matrix. If for other than these two reasons, the Court or the Tribunal is of the view that the decision rendered earlier is not acceptable to it, then the option is to refer it to a Larger Bench of the Court or the Tribunal. In this regard, it is worthwhile to refer to the decision of the Supreme Court in Union of India and Ors. vs. Kamlakshi Finance Corporation reported in (1992) 1 SCC 648 (SC), wherein the Court held as follows:- "6. ............The principles of judicial discipline require that the orders of the hig....
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....and has not been reversed or dissented from by the Supreme Court or reversed by a Fuller Bench of this court, the same is binding on us and, therefore, we cannot rely on the observation of the Bombay High Court which had dissented from the Full Bench decision of this court. Secondly, even assuming that the observations of the Bombay High Court referred to above can be relied on, still the position is that the succeeding Tribunal must refer to the facts which were before the former Tribunal, but which were not taken into account by that Tribunal and must observe that if those facts had been taken into account by the former Tribunal the former Tribunal itself would have come to a different conclusion. Such a statement in the order of the succ....