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2018 (7) TMI 2022 - HC - Income TaxApplicability of provisions of section 14A to Insurance business - assessee has claimed exempted income u/s.10 - Whether Tribunal was justified in interpreting that on account "legislation by incorporation", 'only' the “unamended" Insurance Act 1938 and the Regulations thereunder became part of Section 44 r.w Rule 2 of the First Schedule of the I.T. Rules? - Tribunal was justified in allowing the relief to the assessee by holding that"surplus" available both in Policy Holders Account and Share Holder's Account is to be consolidated and only "net surplus" is to be taxed as income from Insurance Business? - addition made on account of claim of 100% depreciation - HELD THAT:- It is an agreed position between the parties that identical questions were urged by the Revenue in respect of the same respondent assessee for Assessment Years 2006-07 and 2008-09 [2015 (7) TMI 1259 - BOMBAY HIGH COURT] of the Tribunal were admitted. The impugned order dated 14th January, 2015 of the Tribunal has followed its order dated 14th September, 2012 for Assessment Years 2006-07 and 2008-09. Adjustment from the 'surplus' worked as per "actuarial valuation" land - interpreting the proisions of Section 44 of the I. T. Act read with Rule 2 of the First Schedule alongwith provisions of Insurance Act 1938, Insurance regulatory and Development Authority Act 1999 and regulations there under - tribunal was justified in concluding that transfer from Share Holders Account to Policy Holder's Account and shown as part of 'surplus' in the "actuarial valuation'" was only transfer of capital asset and not taxable uls.44 of the Act r.w Rule 2 of the First Schedule? - HELD THAT:- We do not understand how it was not a fundamental issue when the Revenue prefers appeals for Assessment Years 200506 to 2008-09 but becomes fundamental issues for Assessment Years 2010-11 and 2011-12. in the context of the identical facts and law. Mr. Chhotaray's submission is only that these questions are the main questions and should be admitted. This submission is not supported by any indication either in the memo of appeals or by filing a separate affidavit, as to the reason for the change in its earlier view while filing appeals for Assessment Years 2005-06 to 2008-09. No change in facts or in law or even some subsequent decision of the Courts, taking a different view, resulting in this question being raised in these appeals, is pointed out to us. - At that time also, before the Tribunal no submission was made that it would not apply to the subject assessment years. A change of view, in given circumstances may arise, however, it cannot be arbitrary on the part of the State. It must bring on record some facts or law which justify the change from the accepted view of the Revenue. Mere change of the Assessing Officer or of the Counsel for the Revenue is not sufficient to justify a change of view. The law has to be objectively applied and not dependent upon the whims or fancy of the incubant. Expenses on Insurance Business - assessee insurance company uses the nomenclature expenses "other than those directly related to insurance business" while computing the surplus in the Share Holders Account and treating it as part of Insurance Business? - HELD THAT:- this was not an issue raised / urged before the Tribunal. Therefore, in view of the decision of this Court in Commissioner of Income Tax Vs. Tata Chemicals [2002 (4) TMI 42 - BOMBAY HIGH COURT] a question of law not urged and or opined upon by the Tribunal does not give rise to any question of law much less substantial question of law. . Appeals are admitted on substantial questions of law at Sr. Nos. (i), (v), (vi), (viii) and (x) above.
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