TMI Blog2018 (7) TMI 479X X X X Extracts X X X X X X X X Extracts X X X X ..... in facts therein, the basis for the change in practice should have been mentioned either in the assessment order or atleast pointed out to the Tribunal when it passed the impugned order. None of this has happened. In fact, all have proceeded on the basis that there is no change in the principle which has been consistently applied for the earlier assessment years and also for the subsequent assessment years. Therefore, the view of the Tribunal in allowing the respondent's appeal on the principle of consistency cannot in the present facts be faulted with, as it is in accord with the Apex Court decision in Bharat Sanchar Nigam Ltd. (2006 (3) TMI 1 - SUPREME COURT). No substantial question of law - INCOME TAX APPEAL NO. 280 OF 2016 - - - Date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Thus, an expenditure of ₹ 88.05 lakhs claimed against professional income was disallowed by the assessment order dated 15th November, 2010 under Section 143(3) of the Act. 4. Being aggrieved, the respondent carried the issue in appeal to the Commissioner of Income Tax (Appeals) [CIT(A)]. By an order dated 21 st November, 2011, the respondent's appeal was dismissed. 5. Thus, the respondent carried the issue in further appeal to the Tribunal. The impugned order of the Tribunal without going to the merits of the action of the Assessing Officer in allocating the expenses between the professional income and capital gains, proceeded to allow the appeal on the basis of principle of consistency. It observed that for the assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration for each year that is unlike an issue deciding a status of a person and / or a property which would in the absence of any change in law and / or facts would permeate through various years. Thus, the impugned order of the Tribunal is not sustainable and the appeal requires admission. 7. We note that the impugned order of the Tribunal records the fact that the Revenue Authorities have consistently over the years i.e. for the 10 years years prior to Assessment Years 2007 08 and 2008 09 and for 4 subsequent years, accepted the principle that all expenses which has been incurred are attributable entirely to earning professional income. Therefore, the Revenue allowed the expenses to determine professional income without any amount bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed in a decision in one assessment year to the same opinion in a subsequent year is not because of any principle of res judicata but because of the theory of precedent or the precedential value of the earlier pronouncement. Where facts and law in a subsequent assessment year are the same, no authority whether quasi -judicial or judicial can generally be permitted to take a different view. This mandate is subject only to the usual gateways of distinguishing the earlier decision of where the earlier decision is per incuriam. However, these are fetters only on a co ordinate Bench which, failing the possibility of availing of either of these gateways, may yet differ with the view expressed and refer the matter to a Bench of superior strength o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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