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2017 (7) TMI 1384 - BOMBAY HIGH COURTSubstantial question of law - filing of appeal from the second order - existence of two opinions - HELD THAT:- There can be no two opinions on the issue that even if appeal has not been filed from an earlier order, which has been relied upon by the impugned order, the appellant could file an appeal to this Court from the second order. However, this filing of appeal from the second order has to be supported by the averments/submissions showing distinction in the facts and/or in law which would evidence that the impugned order give rise to substantial question of law in the backdrop of the distinctive features in the subsequent order, even though no appeal has been filed from the earlier order. No such averment is found either in the appeal memo nor any such submission has been made 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. 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. Even if the principle of res judicata does not apply in tax matters, yet consistency and certainty of law would require the State to take uniform position and not change their stand in the absence of change in facts and/or law. In this case, admittedly there is no change in the facts and/or in law. As held by the Apex Court in C.K.Gangadharan v. CIT [2008 (7) TMI 10 - SUPREME COURT] and in CIT vs. J.K. Charitable Trust [2008 (11) TMI 8 - SUPREME COURT] this challenge would depend upon the appellant pointing out some distinction in fact and/or law which would justify filing of an appeal. The Supreme Court in the above two cases has observed that though no appeal has been preferred by the Revenue in earlier cases, that would not by itself bar the preferring of an appeal from subsequent order provided there is a change in fact situation. The Court illustrated the same by pointing out the issue being revenue neutral in the earlier year, smallness of tax involved, pronouncement of Higher Court, divergent views of the High Courts as justification for filing appeals from orders of subsequent years. We are of the view that, the absence of the above, would lead to arbitrariness and unsettling of law. This is so as on the basis that consequent to the decision of the Tribunal on an issue, various assessee in the State would plan its affairs on that basis. In fact, at the very outset, the Revenue must point out why the earlier decision is not correct and the circumstances which led to its acceptance. No such attempt has been made.
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