TMI Blog2012 (10) TMI 1171X X X X Extracts X X X X X X X X Extracts X X X X ..... ly have been filed by the Revenue impugning the same order of the CIT(A), Chennai. Since in all the appeals/stay petitions common issues are involved, the same are taken up together for adjudication. 2. In ITA Nos. 1367 to 1369/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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are, therefore, of the opinion that in the present case it is not the case of change of opinion which has resulted in initiation of proceedings under section 147 and 148. Therefore, we uphold the findings of the CIT(A) and dismiss this ground of appeal 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, the issue therein was regarding the nature of liability ie. whether statutory or contractual. In any case, regardless of the difference between the two cases, still we can safely conclude that the decision of the ld. Co-ordinate bench still throws light in the applicability 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 sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y no stretch of imagination could we say that the assessee ought to have ignored the same and proceeded with the final return on the basis of unrevised rates. As we find from the language incorporated in GO dated 20.7.2007 (supra) and also highlighted by the ld. A.R., the word substituted 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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