AI Drafter 
TaxTMI 
TaxTMI 
2017 (7) TMI 1384
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....2.2009 on the following substantial questions of law : 1. Whether in the facts and circumstances of the case and in law the Tribunal failed to appreciate that notwithstanding its order on identical issue in assessee's own case for Assessment Year 2003-04 and that the Revenue had not preferred an appeal for that year against such order, the issue under consideration involves a substantial question of law and a decision thereon establishes a judicial principle having wider applicability and therefore, the issue ought to have been adjudicated de novo ? 2. Whether in the facts and circumstances of the case and in law the Tribunal erred in not appreciating that in order that an income derived by the assessee should fall within the defi....
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....ing in serious miscarriage of justice warranting interference at the hands of this Hon'ble Court ? 2. We note that the impugned order dt.2.3.2009 passed by the Income Tax Appellate Tribunal has dismissed the Revenue's appeal before it by following it's order dt.22.8.2006 in respect of the same respondent/assessee on identical issues for the Assessment Year 2003-04. We find that there are no independent reasons recorded in the impugned order dt.2.2.2005 except stating the issue stands concluded against the Revenue by order dt.22.8.2006 of the Tribunal for the Assessment year 2003-04. We are informed that no appeal has been filed by the Revenue for the Assessment Year 2003-04 from the Order dt.22.8.2006 of the Tribunal. 4. I....
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....; I.T.A. 269 of 2013 CIT v. SBI dated February 4, 2015 (2015) 375 ITR 20 (Bom); I.T.A. No.330 of 2013 DIT v. Citibank N.A. dated March 11, 2015 - (2015) 377 ITR 69 (Bom.)." 4. Mr.Parchure, learned Senior Counsel, in response, very fairly states that there are no distinction in facts and in law in the subject Assessment Year i.e. 2002-03 to that existing when the earlier order of the Tribunal dt.22.8.2006 relating to Assessment Year 2003-04 was passed. However, it is his submission that, in matters of Tax laws, there is no question of res judicata. Thus, the Revenue is entitled to file an appeal from the orders of the Tribunal even if no appeal is filed from the Order of the Tribunal on which the impugned Order being challenged relies upo....
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....21. 6. The fact that the question of law has been formulated by this Court as a substantial question of law at the time of admission would not by itself estop the respondents from submitting before the Court that the question as formulated in the given facts does not give rise to substantial question of law. This is particularly so as sub-section (4) of Section 260A of the Act enables the respondents at the hearing of the appeal to impress upon the Court that the issue on which the question has been admitted does not give rise to any substantial question of law. Therefore, the respondent is not prohibited from urging that a question which has been admitted is not a substantial question of law, at the final hearing of the appeal. Moreover....
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....e at the bar. This Court has consistently taken a view that one of the important elements of rule of law is certainty of law. Therefore, mere change in the Assessment Year, Assessing Officer or assessee will not warrant a filing of appeal. Therefore, where the relied upon order has been accepted by the Revenue and they are able to show by either making an averment in the appeal memo or filing an affidavit showing distinctive features either in facts or in law which would warrant different considerations for entertaining the appeal, the Court would entertain the appeal. However, the Revenue cannot pick and choose the matters which it would agitate before a Higher Forum without there being any distinctive features in fact and /or law. 8. M....