TMI Blog2015 (7) TMI 317X X X X Extracts X X X X X X X X Extracts X X X X ..... esent case, the decision of the Income-tax Appellate Tribunal in holding that even after insertion of section 10(23AAB), the loss incurred from the pension fund like Jeevan Suraksha Fund had to be excluded while determining the actuarial valuation surplus from the insurance business under section 44 of the Income-tax Act, 1961 cannot be faulted. our purview in the present proceedings is only to see if the issue under reference is the same as arising before and answered by the hon'ble high court, so that, where so, an order (by a court under its jurisdiction) inconsistent therewith is liable to be deemed as mistaken. This would also meet the argument by the ld. CIT(A) to the assessment having attained finality; we having already found an identity of the issue under reference. The Revenue when confronted therewith was unable to controvert the same, i.e., the said proposition as well as the identity of the issue. As regards the other contention raised by the Revenue, i.e., of the assessee having taken a well considered stand in the matter, the same would again be of no consequence. True, both the assessee and the Revenue in the instant case were of the considered view that 'income' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as also a part of its insurance business and, thus, liable to be taken into account in computing income from the same u/s. 44 of the Act r/w First Schedule thereto, citing the recent decision (dated 02.08.2011) by the Hon'ble jurisdictional High Court in CIT vs. Life Insurance Corporation of India Ltd. (since reported at [2011] 338 ITR 212 (Bom)) in support. The hon'ble high court had clarified that the loss incurred from pension fund, like Jeevan Suraksha Fund maintained by LIC of India, had to be excluded while determining the actuarial valuation from the insurance business u/s.44 of the Act r/w First Schedule thereto. Several decisions, including by the apex court in the case of Asst. CIT vs. Saurashtra Kutch Stock Exchange Ltd. [2008] 305 ITR 227 (SC) , were cited toward the proposition that a subsequent decision by the apex court or the jurisdictional high court would be a valid basis for inferring a mistake apparent from record. This was as the law was always the same and the later decision does not make a new law, but only discovers the correct principle of law, so that it would apply retrospectively. The same, however, did not find favour with the Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Jeevan Suraksha Fund does not form part of the total income of the Assessee Corporation under section 10(23AAB) of the Income-tax Act, 1961? (d) Whether on the facts and in the circumstances of the case the Tribunal was justified in ignoring the fact that the non obstante clause in section 44 is not extended to section 10(23AAB) of the Income-tax Act, 1961?' The same were answered by the hon'bl court thus,:- '15. As regard questions (c) and (d) are concerned, the dispute is whether the loss incurred by the assessee from Jeevan Suraksha Fund is liable to be excluded in computing the actuarial valuation surplus in view of the fact that the income from Jeevan Suraksha Fund is exempt under section 10(23AAB) of the Income-tax Act, 1961. 16. The argument of the revenue is that with the insertion of section 10(23AAB) by Finance (No. 2) Act, 1996 with effect from 1-4-1997, the profits as well as loss arising from Jeevan Suraksha Fund would not be includible in the total income of the assessee and, therefore, while determining the distributable profits of the assessee, the loss from Jeevan Suraksha Fund ought not to be allowed to be adjusted against the taxable inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ambit admission of a debatable issue, and which is otherwise apparent, at least prima facie, in-as- much as the matter was admitted by the hon'ble jurisdictional high court as raising substantial questions of law. So, however, our purview in the present proceedings is only to see if the issue under reference is the same as arising before and answered by the hon'ble high court, so that, where so, an order (by a court under its jurisdiction) inconsistent therewith is liable to be deemed as mistaken. This would also meet the argument by the ld. CIT(A) to the assessment having attained finality; we having already found an identity of the issue under reference. The Revenue when confronted therewith was unable to controvert the same, i.e., the said proposition as well as the identity of the issue. As regards the other contention raised by the Revenue, i.e., of the assessee having taken a well considered stand in the matter, the same would again be of no consequence. True, both the assessee and the Revenue in the instant case were of the considered view that 'income' including 'loss', the loss of the pension fund had to be excluded in determining the business inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o its principal or allied business or may even otherwise arise to it, is of no moment in-as-much as it does not enter the computation process (for the total income under the Act). Further, whether the business income is under law required to be computed u/s.44 of the Act (as for the insurance business) or any other, as sections 28 to 43B, as is ordinarily the case, is of little consequence. The surplus (or deficit) arrived at by actuarial valuation, which is even otherwise obligatory on the part of the insurance company in terms of its governing law, would bear the same character and, accordingly, stand to be excluded in determining the total income under the Act. We have also referred to Circular No. 762 dated 18.02.1998, which only conveys of the introducing section (sec. 10 (23AAB)) as being brought as an incentive measure for the insurance sector, and has little interpretative value (for the said section). In fact, the decision also does not either interpret the said provision or otherwise refers to the judicial precedents. It is, rather, difficult to say that the decision reflects its ratio as well in-as-much as the same (ratio) would have to be in generic terms, or for that m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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