TMI Blog2016 (6) TMI 893X X X X Extracts X X X X X X X X Extracts X X X X ..... l the assessees i.e. equal treatment. Thus, where the Tribunal has taken a view on a legal issue and the Revenue has in turn either accepted it or challenged it in a higher forum, then where a subsequent order of the Tribunal follows the earlier order of the Tribunal, then the assessee must be treated in the same manner in which the assessee in the earlier case has been treated. However, there could be valid reasons for the Revenue to take a different view in this case, then that taken in the earlier case, then the reasons for the same must be set out in the memo of appeal or at least before the hearing in an affidavit filed by the Officer of the Revenue before the Court. The State cannot act arbitrarily to pick and chose the orders from wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubsequent period of holding as capital asset is to be accepted? (c) Whether on the facts and in the circumstances of the case and in law, the Tribunal was correct in ignoring the fact that for the computation of capital gains, the date of the transfer of an asset is important to distinguish between long term and short term capital assets for the purposes of taxation ? 3. The appeal was heard for sometime on 29th September, 2015 when we passed the following order: After the matter was heard for some time, it was noticed that the impugned order of the Tribunal has inter alia followed its decision in the case ACIT Vs. Bright Star Investment (P) Ltd., (24 SOT 288(Mum)) . Mr.Pinto, learned Counsel for the Revenue states that the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. This is particularly so as if the appeal from the earlier order has been admitted/dismissed then the impugned order following the same would also require admission/dismissal. This would ensure consistency of approach and certainty of law to all concerned i.e. the officers of Revenue and the tax payers. We hope that henceforth the learned Counsel for the Revenue would do the basic homework to assist the Court in disposing of matters. 3. We are making it clear that in case the Revenue does not do this basic exercise, we may be compelled to draw an inference that the earlier order has been accepted by the Revenue and thus the subsequent order would need to be upheld. This would result in our dismissing the Revenue's appeal. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent (supra), then the Officer concerned would file an affidavit. The affidavit of the Officer would indicate the reasons why the Revenue has chosen to file an appeal in this case when it merely follows its order in Bright Star Investment (supra) and no appeal therefrom has been filed; and (e) It was made clear that in case, no appeal is filed in case of Bright Star Investment (supra) and the Revenue does not put on record the reasons why the present appeal is warranted, we would proceed on the basis that the earlier order has been accepted and would dismiss the present appeal. 5. Today when the appeal was called out, Mr. Pinto, learned Counsel appearing for the Revenue states that the Officers of the department are unable to inform hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the two cases are identical. No explanation is offered for this volta face. Thus, we did not hear him on the above aspect, particularly when no affidavit is filed by the Officer of the department justifying the basis for the Revenue to take up a different stand from one taken by the Revenue in respect of the order of the Tribunal in Bright Star Investment (supra). 7. One of the basic feature of Rule of Law is certainty of law and uniform application of law amongst all the assessees i.e. equal treatment. Thus, where the Tribunal has taken a view on a legal issue and the Revenue has in turn either accepted it or challenged it in a higher forum, then where a subsequent order of the Tribunal follows the earlier order of the Tribunal, then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact that where the order of the Tribunal make a reference to an earlier order and thereafter on interpretation applies it to the facts of the case before it, then an affidavit need not be filed. In such cases, the Counsel could make submission why the decision would not apply. However, where the impugned order of the Tribunal relies upon its earlier order in another matter and merely follows it by stating that the facts are identical, then in such cases it would be appropriate that where an appeal is filed from the subsequent order, the memo of appeal should mention whether any appeal has been preferred from the earlier order and if not i.e. it is accepted, then the reason for pursuing the impugned order in appeal before this Court must b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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