TaxTMI 
TaxTMI 
2021 (10) TMI 1008
X X X X Extracts X X X X
X X X X Extracts X X X X
....fore the AO and also not the subject matter of appeal before the first appellate authority, therefore, it was held that assessee cannot agitate the non-taxability of non-compete fee for the first time before the Tribunal. 3. Thereafter, assessee had moved miscellaneous application u/s 254(2) for recall of cross objection on the ground that the Tribunal has erred in law and on facts that in dismissing the cross objection on the ground that fresh issue cannot be raised in cross objection. It was stated that, this finding was in clear violation of the principle laid by Hon'ble Jurisdictional High Court in the case of PCIT vs. Silverline 383 ITR 455 (Del), wherein Hon'ble High Court has held that the Tribunal was justified in permitting the assessee to raise an additional ground challenging the validity of reassessment order passed by the AO u/s 147 for the first time in cross objection filed before the Tribunal; and held that issue raised in cross objection was purely a legal issue which could be raised for the first time and was required to be adjudicated by the Tribunal as per the principle laid down by the Hon'ble Supreme Court in the case of NTPC vs. CIT reported in 229 ITR 383....
X X X X Extracts X X X X
X X X X Extracts X X X X
....impugned case before us, the decision of the Hon'ble Delhi High Court in PCIT versus Siler Line Ltd. was not at all cited by the assessee at any time. Therefore, the question that arises is that even if none of the parties has cited the decision of the Hon'ble Jurisdictional High Court and the same was not considered by the ITAT, does it make the order passed by the coordinate bench suffering from a mistake apparent from record. The answer has been already rendered by the Hon'ble Supreme Court in Asstt. Commissioner of Income Tax versus Saurashtra Kutch Stock Exchange Ltd. 305 ITR 227 wherein the Coordinate Bench passed an order u/s 254 (2) where a decision of the Hon'ble Gurarat High Court, though not cited before the coordinate bench, was ignored. The Coordinate Bench recalled that order holding that a binding decision has not been considered by ITAT. Such order of the ITAT was challenged before the Hon'ble Supreme Court in the case in para number 39-40 has dealt with this issue and held that the non-consideration of a decision of Jurisdictional High Court or of the Supreme Court can be said to be a mistake apparent from the record . Therefore, in the present case the decision of....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the sum of Rs. 1,50,00,000/- (Rupees one crore and fifty lacs only) paid by the Purchaser to the Vendor on or before the date hereof (the payment and receipt whereof the Vendor does hereby admit and acknowledge) the Vendor undertakes and covenants with the Purchaser that the Vendor will not, for a period of two years from the Closing Date directly or indirectly or otherwise individually or jointly or as agents of any person, corporation, firm or individual become engaged or concerned or interest in or aid in the Business or activity in any manner similar to the Business nor permit their names to be used in carrying on or in connection with the Business of any third party or solicit any customer, distributor, supplier, dealer or agent of the Purchaser at any time PROVIDED HOWEVER the Vendor shall be entitled to engage in the Business to the limited extent of manufacturing, producing or processing the Products in pursuance of purchase orders placed by the Purchaser." 6. Mr. Vohra submitted that, the aforesaid clause clearly provides that the amount is being paid for loss of business with a negative covenant, not to engage in the business for period of 2 years and therefore, in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ds besides acting as managing agents, shipping agents, purchasing agents and secretaries. The assessee also acted as importers and distributors on behalf of foreign principals and bought and sold on its own account. Under an agreement which was terminable at will assessee acted as a sole agent of explosives manufactured by Imperial Chemical Industries (Export) Ltd. That agency was terminated and by way of compensation the Imperial Chemical Industries (Export) Ltd., paid for first three years after the termination of the agency two- fifths of the commission accrued on its sales in the territory of the agency of the appellant and in addition in the third year full commission was paid for the sales in that year. The Imperial Chemical Industries (Export) Ltd., took a formal undertaking from the assessee to refrain from selling or accepting any agency for explosives. 7. Two questions arose for determination, namely, whether the amounts received by the appellant for loss of agency was in normal course of business and therefore whether they constituted revenue receipt? The second question which arose before this Court was whether the amount received by the assessee (compensation)....