9911796707
TMI Blog2018 (7) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondents. 2. The petitioner is a State owned Corporation, viz., Tamil Nadu State Marketing Corporation Limited, which has been granted the exclusive privilege for wholesale and retail distribution of Indian Made Foreign Liquor (IMFL) and Beer in the State of Tamil Nadu. Challenge in these writ petitions are to the notices issued by the 2nd respondent under section 263 of the Income Tax Act, 1961. Notice for the assessment year 2004-05 is impugned in Writ Petition No. 31935/2013 and notice for the assessment year 2005-06 is impugned in Writ Petition No.31936/2013 Since the facts are identical, both the writ petitions were heard together and disposed of by this common order. 3.1 The 2nd respondent has issued the impugned notices on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction. Such conclusion is supported by following reasons, for which purpose I refer to the facts pertaining to the assessment year 2004-05 (W.P.No.31935 OF 2013). 5.1 The petitioner for the assessment year 2004-05 filed return of income on 01.11.2004 admitting a total income of Rs. 3,65,84,230/- and subsequently a revised return of income was filed on 30.03.2005 admitting an income of Rs. 4,65,43,830/-. During the said year, the petitioner claimed deduction of a sum of Rs. 435,17,13,674/- as Special Privilege Fee (SPF) in the profit and loss account for the year ended 31.03.2004. The petitioner adopted the rate of SPF on the basis of G.O.Ms.No.338, dated 29.10.2004 enhancing the rate from Rs. 29.78 to Rs. 43.37 per bulk litre with retrospe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure of statutory liability but in the nature of contractual payment to be allowed under section 43B of the Act and that the charging of SPF on the basis of per bulk litre basis and increasing it every year on the basis of the Government Order is not justifiable, the assessee has adopted methodology to take out profits in the name of SPF before arriving at taxable profits and the tax planning made after the end of the financial year so as to reduce profits. 5.4 The petitioner's liability to pay SPF is as per the provisions of the Tamil Nadu Prohibition Act, 1937, and the Tamil Nadu Indian Made Foreign Spirit (Supply by wholesale), Rules, 1983 (Rules) and it is a statutory liability and such liability will be at the rates prevailing/noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03 to 28.11.2003 and Rs. 29.78 for the period 29.1.1.2003 to 31.03.2004 on the basis of G.O No.49, dated 19.02.2004. 5.7 Aggrieved by the same, the petitioner filed appeal before the Income Tax Appellate Tribunal, which allowed the petitioner's appeal and dismissed the appeal filed by the Department by following the petitioner's own case in ITA Nos.962/2010 & 964/Mds/2011, dated 18.09.2012 for the assessment year 2007-08 and 2008-09. The order passed by the Tribunal was given effect to after which the impugned notice has been issued by the 4th respondent . 6. On a perusal of the order passed by the Tribunal, it is seen that the Tribunal considered the question as to whether the payment of Special Privilege Fee as ordered by the Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ege Fees from retrospective date and the case of the assessee is squarely covered by the order passed by the Coordinate Bench of the Tribunal. 8. Pursuant to the order passed by the Tribunal, the Assessing Officer has given effect to the order and passed an order on 24.12.2012, after which, the impugned notice came to be issued on 30.10.2012. 9.1 In my considered view, interpretation sought to be given by the 2nd respondent in the impugned notice is in effect sitting in judgment over the decisions of the ITAT, which analysed the effect of the Government Orders, the language adopted by it and held that the Special Privilege Fee which was revised by subsequent Government Orders substitutes the rates fixed in the earlier Government Order, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for which the impugned notice has been issued. 11. If the said submission by the Revenue is permitted, this would clearly contravene Section 263 (1) of the Act. This is so because the ITAT has considered and decided the effect of the subsequent Government order revising the SPF. Therefore, the issue which has been considered and decided by the Tribunal in the assessee's own case cannot be sought to be reopened by exercise of powers under section 263(1) of the Act. 12. Mr. J.Narayanaswamy, learned counsel for the Revenue referred to explanation to section 263 (1), particularly, clause A under the said explanation and submitted that the Commissioner has power to invoke the said provision, if an order has been passed without making enqu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
