TMI Blog1991 (2) TMI 190X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed the balance amount of Rs. 1,94,787. He was also influenced by the fact that in the immediately preceding year, a similar disallowance of Rs. 3,73,087 had been confirmed by the learned Commissioner (Appeals) vide his order dated 7-7-1986. 3. In appeal, before the learned Commissioner (Appeals) it was submitted that the expenses incurred were of a revenue nature and were not covered by section 35E and that under clause 6(c) of the Agreement with Orissa Minerals Development Co. Ltd., it was the assessee's responsibility to do the levelling of ore loaded in wagons. Similarly, the maintenance and repairs of "Kacha" roads were said to be incidental to business and, therefore, a revenue expenditure. However the learned Commissioner (Appeals) following the order dated 27-10-1987 of the Appellate Tribunal in ITA Nos. 760 and 804/JP/86 for assessment year 1983-84 held that the expenses were properly covered by section 35E and, therefore, the Income-tax Officer was right in disallowing Rs. 1,94,787. 4. Before us Shri O.P. Vaish, the learned counsel for the assessee submitted that actually section 35E had no application to the case of the assessee as the assessee being a mining contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eration. The assessee is a registered partnership firm, constituted under a deed of partnership dated 10-6-1981. The Orissa Minerals Development Co. Ltd. (OMDC for short) is an undertaking of SAIL a wholly owned Government of India Undertaking which has been granted mining of iron and manganese ore.It has its registered office at Calcutta and other offices at various sites including one at Thakurani Mines. OMDC had floated a tender dated 11-5-1981 for mining of iron lump at Thakurani Mines. In pursuance to the said tender, the assessee had entered into a contract with M/s OMDC on 18-9-81 to work as a raising and transportation contractor. The aseessee had to raise iron ore, remove the rejects and transport the ore from Thakurani Mines, PO Thakurani via Barbil, Distt. Keonjhar, Orissa to rail-head. Thus the contract was confined to limited operations like raising, excavating, removal of rejects and transportation, thereby establishing the relationship of principal and contractor between OMDC and the assessee. Clause 1 of the contract defined the nature of work as mentioned above and also specified the tenure of the contracts as commencing from 1-6-1981 for two years. Clauses 2,4 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expenses were allowed after due enquiry in the assessment order. However, in the subsequent assessment year 1983-84, the Income-tax Officer does not appear to have raised any specific queries in relation to the expenditure incurred by the assessee under the heads "levelling and adjustment" and "road repairing" although the Income-tax Officer raised various other points vide order sheet entry dated 9-10-1985. However, the Income-tax Officer added the aforesaid expenses treating them as of a capital nature. The assessment order dated 24-3-1986 refers in this connection (pages 57 to 61 of the assessee's paper book). The learned Commissioner (Appeals) also vide his order dated 7-7-1986. (copy at pages 66 and 67 of the assessee's paper book) did not accept the assessee's submission made on the basis of the decision of the Calcutta High Court in the case of Hindusthan Aluminium Corpn. Ltd. v. CIT [1986] 159 ITR 673/26 Taxman 475 saying that that case related to the assessment year 1963-64 whereas section 35E had been brought on the statute book with effect from 1-4-1971 and that the facts of that case did not tally with the facts of the assessee's case. In appeal also when the matter cam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a different conclusion. Such a statement in the order of the succeeding Tribunal is required in the interest of comity of judicial precedents as well as in the maintenance of judicial decorum and decency. Otherwise, it will lead to an assumed superiority on the part of the succeeding Tribunal as if it had discovered something which had escaped the attention of the former Tribunal and it alone was able to find out the truth, while the former Tribunal was not able to do so." In the light of the above observations even the decision in the case of L.G. Ramamurthy permits a departure if there are fresh facts or if the true facts had not been noticed. There need not be new facts. In the case of HA. Shah Co. it was held that if the Tribunal failed to take into consideration material facts, facts which had a considerable bearing upon the ultimate decision and if the second Tribunal was satisfied that the decision was arrived at because of the failure to take into consideration these material facts and that if these material facts had been taken into consideration, the decision would have been different, then the second Tribunal would be to the same position in revise the earlier decis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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