TMI Blog2018 (2) TMI 877X X X X Extracts X X X X X X X X Extracts X X X X ..... se writ petitions are maintainable. In terms of the decision in GKN Driveshafts (India) Ltd. vs. ITO reported in [2002 (11) TMI 7 - SUPREME Court] the respondent/assessing officer was expected to pass a speaking order and if aggrieved, the assessee is entitled to challenge the same. This procedure has been given a go-by. This defect committed by the assessing officer goes to the root of the matter thereby affecting the very validity of the impugned assessment order. Thus, when the Tribunal has held in favour of the petitioner in respect of the similar issue for the very same assessment year, would the present reassessment amount to a change of opinion is the question to be considered. Identical issue came up for consideration before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round that, if the petitioner was aggrieved, they have to file regular appeals against the assessment orders dated 19.02.2015 20.02.2015 and they cannot bypass the appellate remedy available under the statute. In this regard, reliance was placed on the decision of the Hon ble Supreme Court in Deputy Commissioner of Income Tax v. Divya Investment Private Limited, [2007] 15 SCC 99. As such preliminary issue has been raised, I propose to consider the same at the first instance. 4.Admittedly, regular assessment for the subject assessment years were completed and orders have been passed against the petitioner, which were challenged by the petitioner by way of appeals before the ITAT in ITA Nos.1367 to 1370/Mds/2012, and those appeals were a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry validity of the impugned assessment order. Thus, when the Tribunal has held in favour of the petitioner in respect of the similar issue for the very same assessment year, would the present reassessment amount to a change of opinion is the question to be considered. 7.The case before the Hon ble Supreme Court in Divya Investment Private Limited (supra) relied on by the learned counsel for the Revenue was couched on entirely different set of facts, where the High Court held that the Tribunals view would be binding on all subordinate authorities, so long as the view of the Tribunal is not reversed either by the Tribunal or by the superior Court and therefore, the Income Tax Department will continue to follow the view. Pointing out that u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other provisions of the Act. In fact, for all the assessment years, the assessing officer himself granted partial relief to the assessee by allowing amount paid as special privilege fee as deduction under Section 37(1) of the Act, that is, by extending it for the period during the year in which the Government order is dated/passed. 10.By way of illustration, G.O.Ms.No.65 dated 27.10.2005 was passed fixing the amount as 43.37 instead of 46.35 . Though this Government Order was issued in October, 2005, it was given retrospective effect from 01.04.2004. The Tamil Nadu Government has power to issue such retrospective notification in terms of Rule 2a of the Tamil Nadu Indian Made Foreign Spirit (Supply by Wholesale) Rules, 1983. Therefore, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SC 1121. Ultimately, the Court set aside the assessment order in so far as it treats the privilege fee paid as being taxable income. 12.The decision in the case of Karnataka State Beverages Corporation Ltd. (supra) was noted and followed by the Tribunal in both it's orders dated 18.09.2012 and 30.10.2012. One more reason, which finds place in the reasons for reopening communicated to the petitioner vide proceedings dated 14.01.2015, is by stating that the issue of allowability of special privilege fee was examined in the assessment year 2010-11 and held against the assessee. This assessment order has now been set aside by the Tribunal in an appeal filed by the petitioner in ITA No.2866/Madras/2016, which was heard along with other a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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