TMI Blog2016 (7) TMI 447X X X X Extracts X X X X X X X X Extracts X X X X ..... spective in in the context of finding solution to the problem to the taxpayer, and the matter was set aside to the file of the Assessing Officer with certain directions about factual verifications on the recipient having included the same in the receipts based on which taxable income is computed, and the income having been offered to tax. It is this action of the coordinate bench that was upheld by the Tribunal and the course of action so adopted by the coordinate bench approved by Their Lordships. It is impermissible to pick up one of the aspects of the decision of the judicial authority and read the same in isolation with other aspects. The decision is not on the retrospectivity of the proviso alone, its also on deletion of disallowance i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent made to NBFCs on account of interest charges without deduction of tax at source, under section 40(a)(ia). Aggrieved, assessee carried the matter in appal, and relied upon, inter alia, Hon ble Delhi High Court s judgment in the case of CIT Vs Ansal Landmark Townships Pvt Ltd [(2015) 377 ITR 635 (Del)], but without any success. The assessee is not satisfied and is in further appeal before us. 3. We have heard the learned Departmental Representatives, perused the material on record and duly considered factual matrix of the case in the light of the applicable legal position. None has appeared for the assessee but as the issue in appeal is a short legal issue, set out in a narrow compass of facts, which can be disposed of even without the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date from which sub clause (ia) of section 40(a) was inserted by the Finance (No. 2) Act, 2004. 10. In view of the above discussions, we deem it fit and proper to remit the matter to the file of the Assessing Officer for fresh adjudication in the light of our above observations and after carrying out necessary verifications regarding related payments having been taken into account by the recipients in computation of their income, regarding payment of taxes in respect of such income and regarding filing of the related income tax returns by the recipients. While giving effect to these directions, the Assessing Officer shall give due and fair opportunity of hearing to the assessee, decide the matter in accordance with the law and by way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision in the case of Thomas George Muthoot (supra), undoubtedly, outside the jurisdiction of Hon ble Kerala High Court and outside the jurisdiction of Hon ble Delhi High Court- which has decided the issue in favour of the assessee, there are conflicting decisions on the issue of restrospectivity of second proviso to Section 40(a)(ia). It is thus evident that views of these two High Courts are in direct conflict with each other. Clearly, therefore, there is no meeting ground between these two judgments. The difficulty arises as to which of the Hon ble non jurisdictional High Court is to be followed by us in the present situation. It will be wholly inappropriate for us to choose views of one of the High Courts based on our perceptions abou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Littman vs. Barron 1952(2) AIR 393 and followed by apex Court in Mangalore Chemicals Fertilizers Ltd. vs. Dy. Commr. of CT (1992) Suppl. (1) SCC 21 and Novopan India Ltd. vs. CCE C 1994 (73) ELT 769 (SC), has been summed up in the words of Lord Lohen, in case of ambiguity, a taxing statute should be construed in favour of a tax-payer does not apply to a provision giving tax-payer relief in certain cases from a section clearly imposing liability . This exception, in the present case, has no application. The rule of resolving ambiguity in favour of the assessee does not also apply where the interpretation in favour of assessee will have to treat the provisions unconstitutional, as held in the matter of State of M.P. vs. Dadabhoy s New ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the retrospectivity of the proviso alone, its also on deletion of disallowance in the event of the recipient having taken into account these receipts in the computation of income. The judge made law is as binding on the authorities below as is the legislated statue. The hyper technical stand of the Departmental Representatives, therefore, does not merit our approval. 9. As regards lack of guidance from Hon ble jurisdictional High Court, that can not be reason enough to disregard the decisions from non-jurisdictional High Courts. Hon ble Courts above, being a higher tier of the judicial hierarchy, bind the lower forums not only in the jurisdiction of respective High Courts, but unless, there is anything contrary thereto by the jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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