TaxTMI 
TaxTMI 
TaxTMI 
2022 (12) TMI 250
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....g admission of this additional ground, and as it is purely a legal issue, we admit the additional ground of appeal. 4. Learned counsel's contention is that section 144C was inserted vide Finance (No 2) Act 2009 which categorically provided that in the case of an eligible assessee, the AO "shall forward a draft of the proposed order of assessment if he proposes to make, on or after 1st day of October 2009, any variation which is prejudicial to the interest of the assessee". Our attention is then invited to Explanatory Notes (Circular 5/2010 dated 3rd June 2010) which provided that "these amendments have been made applicable with effect from 1st October 2009 and shall, accordingly, apply in relation to assessment year 2010-11 and subsequent assessment years" as also to Circular No 9/2013 dated which stated that "in the above extracted para 45.5 there has been an inadvertent error in stating that the applicability of the provisions of section 144C inserted vide Finance (No 2) Act 2009 that amendments will apply in relation to the assessment year 2010-11 and subsequent assessment years". As learned counsel puts it, "The moot question in this additional ground is whether in the present....
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....nta Ltd decision (supra) is per incuriam. It was then submitted that the circular dated 19.11.2013, being clarificatory in nature had retrospective effect. Our attention is then drawn to the fact that at no stage, the assessee objected to the assessment order having been time-barred, and also to the practical difficulties resulting from the interpretation adopted in Vedanta's case (supra). Learned Departmental Representative has made an exhaustive submission on other related issues as well, and also filed a detailed written submission, but, for the reasons we will set out in a short while, it is not really necessary to deal with all these aspects. 6. Learned counsel for the assessee submits that there appears to be contrary views, expressed by Hon'ble Andhra High Court in the case of Zuari Cements (supra) and by Hon'ble Madras High Court in the case of Vedanta Ltd (supra), and, submits that in the absence of anything directly from Hon'ble jurisdictional High Court, a view favourable to the assessee must be adopted. 7. In our considered view, it could perhaps be debatable as to in what manner and to what extent the decisions of Hon'ble non-jurisdictional High Courts bind the lower....
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....Hon'ble Madras High Court ignored the earlier decision of the Hon'ble Andhra Pradesh High Court in Zuari Cement's case, Hon'ble Madras High Court's decision is per incuriam and thus only fit to be ignored. 8. As for Mr Doshi's plea about a favourable view being adopted in case of conflicting decisions of the Hon'ble non-jurisdictional High Court, it would be too simplistic an approach to accepting it as an unqualified theory of universal application, without understanding the rationale of this approach. The normal principle is that in the hierarchical judicial system that we have, the better wisdom of the Court below has to yield to the higher wisdom of the Court above. While decisions of Hon'ble non-jurisdictional High Courts, strictly speaking, do not bind us, they are given utmost respect and consideration. As observed by Hon'ble Supreme Court in the case of ACCE vs. Dunlop India Ltd. (1985) 154 ITR 172 (SC) , where the Hon'ble Court has itself quoted from the decision of the House of Lords that "We desire to add and as was said in Cassell & Co. Ltd. vs. Broome (1972) AC 1027 (HL) , we hope it will never be necessary for us to say so again that "In the hierarchical syst....
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.... non-jurisdictional High Court is a call of judicial propriety. Be that as it may, as far as possible, the decisions from the non-jurisdictional High Court, in the absence of anything contrary to it by the Hon'ble jurisdictional High Court, are followed in letter and spirit. The difficulty, however, arises when there are conflicting views of the Hon'ble non-jurisdictional High Courts. It will be wholly inappropriate to choose the views of one of the High Courts based on our perceptions about the reasonableness of the respective viewpoints as such an exercise will de facto amount to sitting in judgment over the views of the High Courts - something diametrically opposed to the very basic principles of the hierarchical judicial system. We must, with our highest respect for such Hon'ble High Courts, adopt an objective criterion for deciding as to which of the Hon'ble High Courts should be followed by us. It is the quest of this objective criterion that the coordinate benches usually resort to the view in favour of the assessee, as is evident from the following observations in a co-ordinate bench decision, in the case of Tej International Pvt Ltd Vs DCIT [(2000) 69 TTJ 650 (Del)]: 8. ....
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....ictional High Court which have rendered the judgment. There is one decision of the division bench consisting of two Hon'ble judges, and there is another decision of a single judge bench consisting of only one Hon'ble judge. The plurality in the decision-making process makes the decisions of benches with a larger number of Hon'ble judges being placed on a higher pedestal than the decisions of the of the benches with a lesser number of Hon'ble judges. Explaining this principle, Hon'ble Gujarat High Court, in the case of CIT Vs VallabhdasVithaldas [(2015) 56 taxmann.com 300 (Guj)] has observed that "the law of precedent heavily relies on the collective decision-making process where multiple legal minds are simultaneously applied assisted by legal research and presentation of legal arguments. When such materials and legal contentions are processed by several judges, the decision that is rendered even if not unanimous has the advantage of input from larger number of legally trained minds". As observed by a Full Bench of Hon'ble AP High Court in the case of CIT Vs B R Constructions [(1994) 202 ITR 222 (AP-FC)], "The principles applicable to Courts in India were laid down by Subba Rao....