TMI Blog2011 (11) TMI 468X X X X Extracts X X X X X X X X Extracts X X X X ..... uation. Learned DR first concedes an issue as covered matter, and his successor is now in rectification petition and submits that his predecessor's stand was incorrect. The facts of the case in Smt. Varsha G. Salunke's case (supra) are indeed different but then the proposition of law which has been so laid down by the learned Third Member is of application in all situations dealing with this issue and not essentially confined to the situations in which timing dispute is the issue. A judicial precedent may lay down propositions which may have application in the same set of facts, or even the propositions which travel much beyond those facts and are of somewhat general applications. To the extent by no stretch of logic it can be concluded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the commission and the TDS is deducted @5.6%". It was noted that the "the corresponding amount of commission comes to Rs. 2,33,76,464" and then he inferred as follows: ..It means that the assessee has not offered the entire receipt on which TDS was deducted and claim for such TDS certificates is taken in the return of income. As per the provisions of Section 199 of the Act, the income corresponding to the TDS deduction has to be offered in the relevant assessment year 3. The Assessing Officer also noticed that no part of the said commission earning of Rs. 2,33,76,464 was offered to tax in the subsequent assessment year. It was also noted that there was no formal agreement for allowing rebate and the rebate was only allowed to som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he carried the matter in appeal before this Tribunal on the following grounds: (a) The Ld CIT(A), on the facts and in the circumstances of the case and in law, erred in deleting the addition of Rs. 42,87,133 made by the AO on account of commission. (b) The Ld CIT(A), on the facts and in the circumstances of the case and in law, erred in not appreciating the fact that as per the provisions of Section 199 of the Income Tax Act, the income corresponding to TDS has to be offered to tax in the relevant assessment year. 4. The grievances so raised by the Assessing Officer were rejected by us, and, while doing so, we observed as follows: 25. In ground no. 1, the revenue is aggrieved of deleting the addition of Rs. 42,87,133 made by the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties that so far as the addition in respect of commission is concerned, the said issue is covered by Smt. Varsha G. Salunke decision (supra). Learned Departmental Representative does not dispute that fact even today, but submits that this stand of the then Departmental Representative, in accepting so, was not correct. That is a very unusual situation. Learned DR first concedes an issue as covered matter, and his successor is now in rectification petition and submits that his predecessor's stand was incorrect. It was open to the Departmental Representative to advance arguments on any of the aspects of the impugned addition and justify the addition, but he did not do so. He accepted that the issue is covered against him. Be that as it may, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or on distinguishing features. Maybe, someone could have made out a case at that stage, as has been made out very aggressively today, but then it is too late in the day to salvage the situation. By no stretch of logic, in our considered view, holding that Varsha Salunke decision applies to the facts of this case constitute a mistake apparent on record. Even if holding that the issue before was covered by Smt. Varsha G. Salunke decision (supra) could indeed be viewed as a mistake, it was certainly was not a mistake on which no two views are possible, which is glaring and self-evident and which can, therefore, be covered by inherently limited scope of Section 254(2) of the Act. That aspect of the matter is, even at best, a highly contentious ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
