9911796707
TMI Blog2012 (10) TMI 1171X X X X Extracts X X X X X X X X Extracts X X X X ..... 369/Mds/2012 the assessee has taken additional ground of reopening of assessment under section 147 of the Act. The other common ground in all the appeals is with regard to disallowance of difference in additional special privilege fee payable by the assessee in the relevant previous year under Tamil Nadu Indian made Foreign Sprit (supply by wholesale) Rules, 1983. 3. The Revenue in its appeals (ITA Nos.1525 to 1528/Mds/2012) has assailed the order of the CIT(A) on the ground that the CIT(A) has directed the Assessing Officer to adopt two different rates as per the G.Os passed during the respective financial years instead of proportionate rate adopted by the Assessing Officer. 4. The first ground of appeal taken by the assessee in ITA Nos. 1367 to 1369/Mds/2012 is with regard to reopening of assessment under section 147. The reasons for reopening furnished by the Assessing Officer for the assessment year 2004-05 are as follows:- "For the A.Y.2004-05, you have claimed additional Vend Fee to the tune of Rs. 435, 17,13,674/- which includes enhanced liability towards Special Privilege Fee based on the G.O. passed with retrospective effect, after the closure of the financial year. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal of the assessee. 8. As regards the second ground of appeal of the assessee and the ground of appeal of the Revenue, both the issues are interconnected. The counsel for the assessee has submitted that identical issue has been decided by the coordinate Bench of the Tribunal in the case of the assessee itself in ITA Nos.962/Mds/2010 relevant to the assessment year 2007-08 decided on 18.9.2012. The counsel for the assessee has placed on record a copy of the order of the Tribunal in ITA Nos.962/Mds/2010 & 964/Mds/2011 relevant to the assessment years 2007-08 and 2008-09 wherein the Revenue has also filed cross appeals. The learned D.R. also admitted that the issue has been adjudicated by the coordinate Bench of the Tribunal . However, the learned DR further contended that while deciding the aforesaid appeals some of the contentions of the Revenue were not taken into consideration by the Bench. The co-ordinate Bench of the Tribunal while deciding a similar controversy in ITA Nos.962 & 1202/Mds/2010, 964 & 925/Mds/2011 and 7 & 258/Mds/2012 has held as under:- " 25. Coming to the chronology of the events relevant to the case, it transpires that the provisions of 'Prohibition Act'( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icability of Prohibition Act and Rules and also defines the nature of various fees etc. paid by the assessee to the Tamil Nadu Govt. imposed by "Prohibition" Act & Rules. 27. So far as the nature of liability in the instant case is concerned, in our considered opinion, the special privilege fees is not a 'statutory liability'. Because even the ld. Co-ordinate bench had held that the liability under the 'Prohibition' Act is not covered by sec.43B of the Act. Taking cue from the same, we also follow the said decision and hold that fees and levies imposed by the 'Prohibition Act' and Rules do not partake the character of a 'statutory' liability. 28. Further, we notice that the liability incurred by the assessee is also not a contractual liability' as well since no agreement existed between assessee and Tamil Nadu Govt. clearly spelling out that there would be yearly revision of special privilege fee. At the same time, since the special privilege fee stood revised on 20.7.2007 and assessee was yet to finalize his account, so it had no other option but to make a provision (supra) in its profit and loss account. In this backdrop of facts of the instant case, we deem it appropriate to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'implies that for all intents and purposes, the earlier special privilege fees rate no more exists. To put it in other words, it stood effaced. There can be no dispute between the parties that this liability is not allowable as a provision for the previous year ended on 31.3.2007, it had to be allowable qua the year ended on 31.3.2008 when actual payment was effective. This, at the best is only an explanation and being a recurring phenomenon, there would not be any revenue loss. In our considered opinion, having allowed the assessee to follow this very methodology for very many years (supra), it is hardly justifiable for Revenue to force the assessee for changing its A.Y. in hand as it will only result in creation of artificial disturbance and levy of tax. Therefore, we conclude that the 'Rule of consistency' in such a case, cannot be given a go bye unless it contravenes a legal provision or the assessee's claim is apparently unallowable by its very nature. 32. Adverting to the voluminous case laws meticulously cited by ld. D.R., we hold that all these were instances where an assessee could not make even a provision during the relevant previous year due to lack of knowledge or aw ..... X X X X Extracts X X X X X X X X Extracts X X X X
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