Karnataka High Court
M/S Sriram Chits (Bangalore) Ltd vs The Asst Commr Of Income Tax on 18 June, 2010
Bench: N.K.Patil, B.V.Nagarathna
BETWEEN :
IN TI"-"I113 I*HC}I'"l C(')1ER'!" (DF KAI{i\%'\'I':'\I-(A .»'\'§" 1.33/7\N('}AI.(')RI':.I
IDATEI.) TI HS TI 11*} l8""' I').r\Y 014' :.fU,\II3:I. 2()}()
PRES I*Z§\J fl'
TI~iP3 I---IC)N'l-::%l..Ii MR. JL.='S'I'i('lC 1--ar\'1'11._....._ ' .: ~
AND
* THE HONBLF2 MRS. J us3'1'1<;i1a: NA(MR/x'1'1.TAi.%\1»./\_
I.'I'.A. NOs.3249/2005 C./W :-. 2'/*".;;o5:3
3250 :a<..*;<i)§._'WwW" ""M"%
IN I.T.A. 310.3249/2005 '
M/S SRIRAM C111 I*1's:;g13AN.(3.<x_1;Q"1est.)V131)..
(NOW KNOWN S1--1!"'}V<11is:r_x1\«z_c':t1[ms [K/[\RNA"l'AKA) {1}} 1,"1'1:>..)
REP. BY 'yrs ._1.axE:Ci:...:<s.'.1v'1: i')=IRi'.i.(2"l'{)l{
MR RONALD 1) s0U:;'»':..rf\~. --~
AGED 42 YEARS ' A' .-- V
AKSHODAYA N0.':25g)/.:'s :2,
{ST mcnorzz, '
" OT" WIUSCSN '€3--£kE'{£)f%1N
" BANQxx!.0":2 E:~_5zs.Q 02'; .._ A1T>19'1%:1..,1,AN'1'
(§33iVSri: Sr. 5-.:")\.»'.. 1«'<'">1< Sh/i'l' VANJ AN-'1...) R/\.JVJ../X
' " MURTHY, ASSOC'. I/\"I.'I£S}
V' f1'1::I._:i;v.A_SE=;'I' COMM:-I2 <91" INC()I\/Eli '1'g\><
.CIRCLE 12(2)
BAN-GALOREC I-<I«:s:->oN'I::)ieN'I'
[By Sri: M V SESI {AC1-I.z\l../'\. ;\1.>\--'.)
This IT./-\. is §'i1(;->d L1/f:3.i'é_'E')'(')./\ 01' i.'I'..»"\(*I, IUESI ;'.1;§;1i11.ss_1. 1110
order deueci o2--09m20o5 }')e1s_<:(>.(_1 in rm Nu.957/Ismggg,/j2:.Q(:.;3
for 'thc-3 Assess31:1('*2'1§' ':"va1" 1999")»-{")() 1)1';1_\T'i11;;' 1l"1e.-1.1 .
Court: may be p§c*2.1.sc('.l H'):
a} F01*mL1iat.€ 1,h<:=. s3ubsI'a1'1.£i2-11 (.]1.1("s1'i()1V1__(.)I' 1:-mj};'té1T'{c=-9(1..1h<*1*t?i:'1-*1_1 :3 A
b} allow the 2.1;.')p<*z'Ll 2=111d swl. V;=is;i_gl:'.> l% 1&-:_V §fi1*<'1n:*1' 5{$i - jv%.l;r,V:'
Banga}0re in WA No.95? /1'3;-11' 1._g/2E_Jm;3' c:;;m;~.ct'<.;;2§0s)}:2_()Q5 in so
far as, 1'11 1'eia1t<:s E.1'cs;1I'i11g;g _§.1'1"t: c1i'.;}i(:.1c;11ti--«iV;'14..jj§'>'1'11(? as 1' axaljie and
is not exenlpt. Li1']dt?l' ihc? f1"1c<)'tT:1_;->. 'I'§'1:x;A:'--i'I'*.-. i -2'11'1c'} em'.
1
J
IN I.T.A. N0.32S2
M/S SRI'RAI':/1' <:.1~1r:>s- ..(_1"'3A_N"c,gm)'ms] III'i..)..
(NOW KNOWN AS 3;-=1'1}g11-2A~M"'c%=~=u'1's (KARN/\'I'AKA] {P} 1,113..)
REP. BY ITS" {EXEC 1:'_:*1'v.I'«:- 1313 E3C"I"(I)R
MR RQ1\_!A£.f) D s'c)J,,12:A
AG}';:>.;_42 armies -
" ' =AKs-HoL_AYA.° A.1\10.25'9/:»;'_1
IS'['aE'I,O_OR1,. 1401;--1<:1--eoss.
"'WIi£;SON 'GA;::IJ:;N--.
BANGALOR;5+_5:1G"02 7 . . . /WE-??'f<2§,i.AN'f'
% ' (By Sn: G--._'SAR'ANGA.I.\?. /\i)V_. rvozzssgx/I*rvAN1AN1">1<A1\/IA
- -. _ MU RTHY. }£rAsA_N /\SS()(f.f1A'i"ICS]
% j -.'1?.I~»%.i«: ASST' COMMR 014' II\E'C0§\/If-3 "1'..:-\.><
'QCIRCLE 12(2)
«~ BANG/-\L0R1'«: mas:-->(")Nmzm'
[By Sri: M V SESPIACI EALA. !\D\=".)
This I'I.'A is I'il.cc:l a.1/S.2b'('Jw;'\ oi" 1.'I'.z\v1. 1981 ;'1;§;'1i11sl rlw
order dzizijed O2mOE»)w20(')5 I)'c.1.'5'1'F»t.'(1 in IT/-'x 1\?<">.€')E>'(}/I39111';;/2003
for the As:~3ess111e1'1i Y<:e.11' 2()(}2--2',(.)(.}i%. 1)1"e.1._\4~'i11;_>_" 1'.l'[:;1{ »._i'1'a.i_§;
H0n'b1e C()LlII'1 1'1'1e'1y bv ]Jl('E-1h'c:'(".l 10:
i. f01'I"I1uI£u,e the SL.1b!-3I.é1l'1I'iE1l ('[_L.lC'S1i(')l'i ué' l;.1\\' st.e11ia:r'1 _:i"}'.:V<r1"'--.:Vi'11«,_
1'1'. aliow the £1;;)1.3ee.11 and .'-"é(TI~é1f:~3iL.1(' i_M§:' '(';i'('1E:'"l" <"-::i l ]"1<--'_
bearing No.960/1J3;m;_g/2003 claim! ('>2--(>9->*§_A:2o'<.>5:ia---Q50 _2a_1~
relates t:1'eat.i1'1g; Iht' c1ivi(:1e11<.'1 i.:*i<:~:_.>__111<'= 2'13 iE..1.'Z}"1I,)1'f':'V e.i...I:1(.1.....i-"3 3'1")'
exempt': urader the I.'I'.A(>t. I961. i111('V1;C?SY V{)f'vf}1l&;i;:i('t' e1n(,i
equity. . n V' " V
IN I.T.A. NO.325I /2005
BETwEIf;t{; J' " V.
M/S sRIRAM.c1~1ITSw{mN<;A;.,(3~R1-5:} 1:1"1)..
{NOW KNOWN A8 S1 -IRIRA-C'.I 1 1"1"$ (1m\1eNA'1>r-\1<A} {P} I.'I'£). .)
REP. BY ITS 1:x_1r:'CtjfI§.1\-'1r--:_ DIR1%1('_i'I"(..)I--< '
MR RC§N'A1._,1) D SOUZA
»"'~AGEE:)_'42;_3(I3;ARS ----------
AKsH0DmjA_NQ.25s9/:31
-18': FL€)_OvR. ' %3_(3<1'% I" C ROSS.
WILSON GA-R;)1a:'m.
;3Ar«:G'A1.oR1:-:-- -.550 027 AI"I-"'lEZl,I.AN'I'
'(By sri': .CCsARAN(;A_N. Sr. m._)v.. rm);-'e SMT VAf\JI AND 1eAI\/IA
' ' . ,_M1;RTHY._~ VASAN ASSOC IA'I'I'BS}
'=4 *r"Hi$ ASST C()I\/[MR or 1N(IiO!VIIC "mx
~ .. .CIRCL£«: 12(2)
BANGALORIE ... RI§SI"(T)N [.)IC:\1"I"
"}
[By Sri: M V S[€SI'"IACI IALA. /\I:')\".}
*$$**$##
This [TA is flied 1,1/S.2E)'O--A 0]' l."I'.A<"1.. lS;)E:SI
order datecf C>2+o9w:200:3 ])&"1.'%,'_-Et-:'(i m VIZ-"X Nu.s3.39/113;;'1'1'g,Z:;:--«é':s{i;:;a____'_
for the Asse?ss:1'1c::111 \"'c=:'z;-11' 2{){)]~i2..(I}{..J2. 1')1';;s'x_r.Vi1_1.},_A>',j'~-...2'l1Q{I"
I--i0n'b1e C0111': Ilmy be pl("e.1s{"d to:
E. f01'mL1lat.e the s11l3s;[e-11T1E.ie1I (:1:1c's1i<.>11;":¢'>i' E::,§wA.:j.~[_V*,1.'(1i'L~'_(1"'I11L-~1'<:;ifi:-~ x 7
ii. ailow the 21;)1.)cal and S(':'I-V2l.'['.'4;--.1 §1("' §i':1"t-' .{'5£'("!t:'l' ,:'>'f'
bearing No.959/Barzgg/i2()O3 (*1;-1u'.m:L.i_Tt'_;:,2[()9»:zc>{:jEa=:L£.= sa(_§ f'e--:.1:21.<'. n
"relates t.1"eat,i1'1g the (1i\:'i(:1.(§11('l i1}:.-.-:-)1V1 .1'(:--.z'1['s:.._ 1_.£.'1X21}"}'l'("'~.&'1]7l1j is 110%".
exempi under the f.'I'./\(".'VZ' ill};[Mfé"'{_ii'H,4i'E?.f;i§ c)["_j:.1sI_i<'c* 21 nd
equity. T V' V H' 'V
IN 1.'l'.A.
BEFWEEN3 » 95
M /S sRjIRAM-- (:z1I"1i53» .,tiBAN'C3Ai~;..(1)';»::1--~:J 1:11 3
[NOW KNOWN A53 815 'R1:2A.M"-<:;1::i1'1"s (Kr-'\}'<.1\i:'\'I"z'\K/\) (P) 1;r1..>..)
REP. BY ITS L::;:<['«:c"L;I'1'm«;.-I;.>'1R:<:(:t"1'c':;>R
MR RONALD s'(>I;V2:z\ ' "
AGED ;42 YEARS' .. _
I " - A_Ks1.3'(>1).AYA..%_N0 . 2339/--::~ 1'
ISTFLOOR. '10?' CROSS.
* ..w'1Ls'0N 'GAE-{ii} EZN .
BAN«GALOR«E- 027" . .. /\I"I>1££.I.1\_N"I'
(By S111: C}___'S2'..R:27\.I\lC3AE\?. 81'. !\D\-''.. FOR SMT V/\§\ll /\i\.J'I_) RAMA
fMURTHY4 '-[AS/~\.N /\SS(.)( 3IA"l.'lCS}
ASST COMIVIR OF' 1N<:0:\/11+: TAX.
,(_3MI_R7C;L.EI 12(2)
" » , V BANGA.LORI¥Z . . . mes}>c_>N1.>1'~:N"1'
91
4 {By Sri: M V SICSII/\CIlAI,/\. /\I.)\='.}
$$*$*$
This ITA fiieci 1.:/S.26OwA 01' I,'I'.A<.'1'. 1S}E">' I. a€;.i::1i11est i.l"1e
Order dated ()2--O9~20()E?3 }.)a.~sese('l in I'I':'\ N(').S)58/i'3;"111;;/2(}()f3
for the Asses;s11'1e1'1i. Y'em' '2.(.){.)(..)»-:l£('}{'JI. p1'a},.*i1'1;.2; Il1:11'.':_{.his
Hon'bie Court n:1:;1y be plez-1..s:e{1 1.0:
1'. formulate the S1,.1i):.s1.;':1'11ia11 qu<.r.~sIio1'1 of law Sl£'11e(.?(1 '1--..m%1~.s;-;i'n,_
ii. allew 1:119 21p}')e:.1l ;'11'1d .'st'I"--&'1F~'id(':'f1Ai>C ('_)1'dt5..;' ('.:Jl AVlV.'§"'1\!,' I'l"2"{I',
bea1'i1e1g N0.958/E3a11§__{/2()0('3 celale-'('1 ()2a--(}€'}{'_2(}U511:21 5s:_g':1";fi'
relates t.1'ea1E'i1e1g the clivideud i.-,»1V('e/':_)_111e ;.i.~:."1.i1xz.1}.)le'éi;'1<.1__is hoté
exempt Lmdex' the ITI'./\v1.. 196%. i'"1":,VI I'1«.'* i1'1I<.rV1"e_sf"r;E'Vfj1.1s§'a'i<"c :_11e1<'l
equity.
These ITAS beillg 1'-e..<.V.ae1"\V1*(5*V('l: a_--x«:.1d ~cc_')'_r?-ni1'1g.; (>11 1'01"
p1'or101.mcemer1i ..j11(i§g_§'1'11t'*1'1"t r'};"1_y".;« VN(:zgc:u"c11fma J
de1iVe1'ec§e ' flit-6 '2'o.:H4::)\xri 'V '
-- _ M £2 \1 3'
Tlwege E1[5}3£'2:1.[S' '2'11'ie'jét=2 out of the c'*m1e111'1m1 01'<lc1' 01' {.110
i11c&0r1'1;e."lE'2i;: J'up1.)ella-ale 'I'1'ib1:1'1;1§ [')a1H5(.?(l in i'I'A.Nos.E)57 Li}
2.9.2005 pe1'123ini1'1g 1'10 the
Asse-s§Vn1€2r1i,'Ye:-ties E9'-)SJ€.}--2(j)()(). iZ.(..J()()"i2()()i. 2(.)(}}--2(}(')?, amrl
.4.._"2-.O02~f2.O'(),3A:1~ The szlicl zlppezlls J'1;.1\.-*e !..)<-'(:11 f'1'Ee(I by H'I(".
' by raisi1'1g £h(.: t'(e>E§<)\.vi1e1g :~a1_.1¥':.>sI.:'11'11.ial c;1£2e.~stic)11.s of
i) Whether on the facts and in the circuinstan-cges.
of the case, the Income Tax Appellate""I'ri=bm___1:na1§__is
was correct in law in rejecting the"'«appellant's'
claim for exemption of the diiifidelndiyon'
principles of mutualityggon
appellant is a business concern?
ii) Whether on the facts circumstances
of the case 'the appellate Tribunal
was correctl'ih_a_'iaw_Vin? fact that
whenrthe appellant to chit, it does
sofinl lcharacéteii as ' ajlstib scfiber?
2_._. to, filing of these appeals
are that, the a private limited company
carrying on busiriesslofpilconducting chits. for the relevant
asse.ssrne.nt years, tiled its return of income and sought
ojfpiayment of tax on the Foreman's dividend on
dlioctrine of mutuality on the ground that the
appe11an't'is «la business concern. The Assessing Officer did
T'r1ot.i allowllthe said exemption and concluded the assessment
, it ander Section l43(3) of the Income Tax Act. Being aggrieved
l the said order, the appellant assessee preferred an appeal
V before the Commissioner of Income Tax (Appeals) who
upheld the disallowance of Foreman's dividend as liable to
2.
~//f' .
p7,,
tax. As against the said order the appellant preferred an
appeal before the Income Tax Appellate Tribunal.
8. Before the Tribunal, counsel on'l"l..bothii:
submitted that, the appeals could»ble"disposedfpof._oi'i*:the"1 I A'
basis of the earlier order of the
ITA.Nos.74.-8 to 751 of i9l9'8::.""ciated. vs.4--.2Q_0s~--,"fd1-- the l'
assessment years 1992+-Q3 toe.l'iQ--..Cl5--98._ Consequently, by
recording the said submlislsionl,s..the' disposed of the
appeals by ho1di.ngv..thaft'Vthe for exemption
on the prin::'iple__ d'id:_11ot» hold any water and
dismissledfv the" »v l ' the V appellant herein. Being
aggrieved. by the ofdismissal, these appeals have
been preferred by raisiiigl the aforesaid substantial questions
V' .01" A ..... .. V
heard the learned Senior Counsel;
Sri.'}3ara..ngarl'j for Sriflaxnamurthy, Advocate, for the
plp."appellaiit'. and Sri.lVi.V.Seshachala, learned counsel for the
" _ l re'spondent--revenue.
5. It is submitted on behalf of the appellant that,
the tribunal was not right in dismissing the appeal of the
appellant by not applying the doctrine of mutuality with
-3,"
regard to the income of the appellant by taking into
consideration the activity of the appellant, that the very
same contention was raised in respect of the V. earlier
assessment years also, but there has been no firralityyp' the
matter as far as this appellant is concerned
of applicability of the doctrine of]pAm1it1'iaj3».it3(
income of the appellant is e2:e_mptedg_fr'em ~g'ayfi1e£;;.t"'cf"*»
income tax if the said doctrine to the
6. Per contra, learned"lcoiir-xselvnfforfthe respondent
submits that,§~wiithZ'*regardg 9 assessment years i.e., 19'99»§9'3 Lribiinal in ITA.Nos.748 to 751 of 19928, 'by 8.4.2003, negatived the contentionlof appellantwith regard to the applicability of ,,..Athe':i.jp'rincip1e of 'mutuality to the business of the appellant and"that:_:for"lt.:h€Assessment Years 1996-97 to 1998-99, also tlielllappealls; the appellant were dismissed by order dated '
28.ll.20l0{-l in I.T.A.Nos.2l5 to 218 of 2002. Challenging the saidporders, ITA.§\Jos.233 to 236 of 2004 were filed for the assessment years 1996-97 to 1998-99 and ITA.Nos.301 to W304 of 2003 were filed for the assessment years 1992-93 to 1995-96 respectively before this court, but on 20.10.2008 during the pendency of the present appeals punder 4511; 10 JAALL substantial questions of law would not arise in these appeals and hence, they have to be dismissed.
7. In reply to the said submission, 1earne_d~.Seniovr Counsel has stated that, in income tax mattersg.--the'c=oricept . of res judicata or estoppel do not arise and"'tha,:t_~for. every successive assessment year, the very same contentions..__car.t be raised and even if the asscaissee has not been able to get the relief in a particular assessr'nent.uyear"inpla. subsequent assessment year, the -said -reliefs. 'c--a_n_""be granted. The withdrawal of the appea_l.s:'_b.y has no effect 'whatsoever on that-the tribunal simply followed' its'earlier..decisi.on--..in 'iTA.Nos.748 to 751 of 1998 and disposedltof and that the withdrawal of one set appeaIsV"wonld not come in the Way of pursuing the these appeals which are for the subsequent ".1s's;%;,ss~;xr1.s§1»,r, and relgnng upon the decision of the Apex Court re'ported in AIR 1981 SC 1461 and other judgments he alphas' submitted that the question of the applicability of the .11 'doctrine of mutuality can be gone into in the present appeals % the relief can be granted to the appellant.
8. Having heard learned counsel on both sides and on perusal of the material on record, the point ,that arises for W11- our consideration is, as to whether, the Withdrawal of the appeals filed against the order dated lTA.Nos.748 to 751/Bang/l998 and other cases _ the tribunal f or the particular assessme_nt"~ye:a.r:s"~.im'ouldit entitle the appellant to raise the issue .:4.doetrine_ltVof .' mutuality for the assessment },*ea_rs under"eonside1fa.ti0n.
9. In order top"ans\--trer§. 'said question, it is necessary to extract the relevant :po'i*tion:f the impugned order of the tri5.i")ii'AfAl€3iat the lctitsetz "
1: both the counsels _oso'reed.. lissi1"e'~~a'rose in assessee's ownncase No;-48 to". 751 /Banq/ 1 998 dated
8.-'£2003 In view of the decision _ of this'1':jibunal oi$sessee's own case, the claim " cgzfjassessee th_qt.ineome is exempt on principle of do not hold any water. Thus, the AO in treating Foreman's dividend as tllineome in the hands of assessee. The 2 "appeals of assessee are to be dismissed."
l0. From a reading of the aforesaid order, it is ..._apparent that the tribunal disposed of the appeals against the assessee by placing reliance on its earlier order in ITA.Nos.748 to 751/Bang/1998 disposed of on 8.4.2003. As regards the said order pertaining to the assessrpent years )1 ...»-an--"""_' _» *13_ the appeal based on the submission made by counsel on both sides. In View of the aforesaid facts, in the present case, we are of the View that the appellant canno1:'"agigtat'eA4 these appeals on merits. In fact when V' 304/2002 and I'I'A.Nos. 233 to 23612004 Wheres'"wi1}1ld1*awn;i'_ ft"
the present appeals under consideration_'were'aal'so.l'ppen»d'ingl}l--ip While withdrawing the aforerne'r'i-tioneld'v- appealsl ~lib~'erty * if was sought to pursue the presentvappealstlonvmerlts. No doubt in the field of incoriney ?.j.laVw;"*.fer:lleVery assessment year, similar contentions-could in the instant case what weare colnsiderirlg is _t.be-- effelctlof a consent order I passed earlier decision, against which, appeals «filed before this court were withdrawn without re'servin"g liberty to agitate the very same the presentvappeals which are filed challenging theconsent orders. In our view, the effect of withdrawal of appeals on ll;0.208 without reserving liberty to agitate the liyery samequestion, in the instant appeals would amount to A fa con--s;':ructiVe binding precedent, as far as the assessment ' years under consideration in these appeals are concerned as if tribunal for the said period only followed its earlier order which were in I'I'A.Nos. 748 to 751/98 which was an order passed on merits, by declining to apply the principle of M9»?
_ 14 ll-ALLA mutuality vis-a-vie the appel1ant--assessee. When the appe-al filed against the order passed in l'l'A.Nos.748 to 751/98 and connected matters were withdrawn, it would mean that the appeals were withdrawn without reserving any would mean that the appellant has given up 0' contest the matter on merits in th{:'f"'p1«'€S61lt é_.Iso7.. which are pertaining to the assessment7'ye'ars 2002-2003. We hasten to addVthat..Vin respect_Voi:Vas:se'ssnient years subsequent to 2002-03 ohwards, the appellant may be it the Very same contention if so advised. as liari./;i_s'lltliegaslsessment years 1999--20'00$¢ in the present appeals since thefiorder of impugned in these appeals was passed lbasvedec-in t_he""submission of the counsel with ~refe1vrenc6.j~t:o the ordlerpassed by the tribunal in I'l'A.N'o.74l8-- of on 8.4.2003 and other appeals disposed of against Which, the appeals filed before this 'gcourt were also withdrawn, keeping in View the doctrine of A l.I:1a¢rlge--: and judicial discipline, it is not proper for us to interfere. If as submitted by the learned Senior Counsel for it appellant, we have to dispose of these appeals on merits, it would amount to indirectly reconsidering the decision of the tribunal in I'l'A.Nos.74~8--751/ 1998 which were disposed A "Z m3_5_ of on merits and against which the appeals filed before this court were withdrawn before another Division Bench this court.
I 1. In this context, it is relevantto refer"
settled theory of Precedents as cited learned Every judicial decision contains three basis pos'tulate«s.:
i] Finding of direct andinferential. inferential inference the judge fromfldirectll orjperjceptible fact;
ii) --p__r'inciples of law applicable to ._ the disclosed by the facts;
iii} A Judgmentslillmade in combined effect of the abovej. V 'A context. it is also relevant to bear in mind the and propriety demands that this Division Bench caimot allow itself to adjudicate these appeals on Vlpmnierits when another Division Bench of this court permitted has Kzvithdrawal of appeals filed against another set of ..._i.mpugned orders of the tribunal, based on which the tribunal passed the orders which are impugned in these appeals.
mléil
12. The effect of an order of Withdrawal of a suit or proceeding with leave is to relegate the parties to the same position which they occupied before the said suit or appeal was brought. In fact, in the context of Order 23 the Apex Court in a case reported in AIR 198?' _q it case of Sargtga Transport Service, Appellate Tribunal, Gwalior and Oth'e__rs','.V_has principle enunciated therein is"--b:ased on~pu'bli(_: and not a rule of res judicata'. l
13. In fact, under the Income Tax Act andappealéfbefoifel th'isl.:l'courtlVVcan be maintained only if there is of law involved. A substantial question ofV1aVw. _does_ not mean a question of general V' but substantial questions between the parties g_li1*i*iolvedv-v.ir1"case. In fact, the concept of substantial question under Section 260A of the Income Tax Act is analogous to Section 100 of code of civil procedure which A i~l_"a'iso"<--..permits filing of an appeai only on a substantial ' question of law. In fact, it is necessary to note at this stage .' "that the substantial question of law raised in these appeals were by reference to the substantial question of law raised in ITA.No.233/04 and as the said appeal was pending ".21"
$5551 11 _ consideration when the order in these cases were made on 2.2.2006 in ITA.No.3249/05 by this court which readses follows:
"Sri.Rama Murthy, the learned foribll the appellant, submits that the questions' .inoo'liiedV" 2 in this appeal is similar to the=.A_one-..raised.in' PIA it No.233/2004 and the said app¢d1._ is p¢.:;:1irig' consideration before this
2. In the ligl1;t_.b3fthle _g:ci:t(i:«stibr'nission,AA this appeal is also the substantial tqaes tions" ' _ K set herein bel0w:- it ._ . and in the it of the case, I the Income ~ 'Tait 'zippellate«.?"nbunal was correct in allawlin rejecting the Appellants claim for eicernption of the dividend on the of mutuality, on the ground the appellant is a business concern?
Whether on the facts and in the circumstances of the case the Income Tax Appellate Tribunal was correct in law in ignoring the fact that when the appellant submitted to chit, it does so its character as a subscriber?"
14. Similarly, on 14.3.2006 by referring to the order passed in 1TA.No.3249/05, ITA.Nos. 3251/05,325(¥05 and .0 13 \lllAM 3252/O5 were admitted. When we read the order dated 26.7.2004 in ITA238/04, we find that the said appeatwas admitted on the ground that the question of therein was similar to the question of law raised"-in 301 to 304/03 pending before this A The o1'de1i.passedl.V"0 In 9 I it in ITA.No.233/04 dated 26.7.2004 reet1s':'a_sx fo11§w§;'~». . " ' "26m July, 2004 ITA 2233/ by Counsel for the appellant ingApara"4gq_f memorandum of V 'appeal '*--s_'tated_ that the questions similar to appeal are pendigngi ihtszebun in ITA dddd we are of vieiifthatv appeal requires to be admitted' _ it is admitted to consider.
is ihegfollowingqluestion of law:
«Whether oath" facts and in the circumstances of thecase, the Income Tax Appellate Tribunal ' _ correct in law in rejecting the appellants ""ela:ini.j'"o"r exemption of the dividend on the principles of mutuality, on the ground that the .._'appellant is a business concern? V' .. 2."w--'Whether.on the facts and in the circumstances " of the case, the Income tax Appellate Tribunal was correct in law in ignoring the fact that when the appellant subscribed to a chit, it does so in its character as a subscriber'? List this appeal along with ITA 301-304 / 2003. "
Z
-13r_
15. In fact, the counsel who appeared in ITA.Nos.233 to 235/2005 and ITA.Nos.30l to 304/Qfieffiflantd the present appeals is one and the same. Therc£ore;"vii11--efl----- ~ the aforesaid substantial questions ofnlaw wetellnot .1p1pi.v' for consideration by this court on acr;ou:nt..of the'withdr:awalj_' of the said appeals and based<on.__the inipugned';lordverppoftthe tribunal in those appeals the ordeilinvlthevfipresent appeals were passed by be held that in View of the withdrawal thohsep substantial question of law the assessment Years in contentions raised' in these forihevlsubsequent assessment years.
The decision relied upon by the learned Senior .W.Counsel "o.n"the:aforesaid question can be referred to at this stagelft In ..5'case of Commissioner of Wealth Tax V/s".
'.Meattles iii; Ltd. reported m (1986) 156 HR 569 it has been V' jneltdl llthat the decision arrived at in one assessment year are
-.jIbin_dinAg neither on the assessee nor on the revenue in "respect of the subsequent assessment years. It also states it that the principle of estoppel as to applicability to succeeding assessment and the revenue authorities are not bound by mggm any contention or decision taken up in one assessment when the same issue comes up for decision in the different assessment year. The aforesaid observations are mladfe ' . the context of a revenue authority taking a paniiculary lviewofi. ' the statutory provisions in the income ta);:'assessment:'anii1vi_' later on realising that it was a' rnistal'(cnV'viewi.coi3.1ld not be established from taking statutory provisions later on, as is statute.
The context in which have been made are not keeping in mind the Peculiar i*act;§al :
._.'3imila1'ly:i11'cas'e of New Jehangtr Vaktl Mills Co. Ltd. V/so Conimissic.r1ié'r.t.lo_f Income Tax, Bombay North, Kutclt;§z."Saurashtrct(63}l}'ol.XLD{ ITR 137(sc). it is observed that in Iris-iLtelr;~:._._of taxation there can be no question of res judicata aVndvpbthev'diecision given by the Income Tax Officer for one a.ssess1n_e.iit year would effect or bind his decision for 3u'"2__lanother.. year and generally doctrine of res judicata or if iestopppel by record does not apply to such decisions, also has is noapplication to the assessment years under consideration. ~ y :.l'However, in view of the aforesaid observations, the appellant- assessee can raise the issue of applicability of doctrine of mutuality for the subsequent assessment years. 3? _2:1__
18. in the case of Daryao V/s. State of UP. (AIR 1961 SC 1457] it is stated that the rule of res judicata is not only a technical rule, but it is founded on CO1'1Sid€I'atiO1lS>Of public policy inasmuch as it is in the interest of . large that a finality should attach to the bindirig' 0' pronounced by the courts of competent jurisdict.i.on';and 'it3isxF& also in the public interest that vexed twice over with the same lw-:.i_n*cl.i_pof litigation'. said case, the question was WhetherAya----rl.ecis'i*on of Court on a writ petition under Ariiicl-e 'Z26:-could Joe'~»considered as a bar High Court. The Apex Court held that if merits is made under Article 226 of the C"o~r1stitution:_, the same would operate as a res ».a petitionlfiled under Article 82 before the 'w.The context in which the observations of the have been made, do not apply to the lchpreseni case at all.
.919. For the aforesaid rezaons. we hold that no Oh"-"-'__,_./,.
substantial question of law raised in these appeals for the 9' assessment years 1999-2000 to 2002-03 and accordingly, these appeals are dismissed. However, this order would not come in the way of the appellants agitating the very same E W21- substantial questions of law for the assessment ygars 2003-04 onwards. Ordered accordingly. ssé .