TMI Blog2015 (1) TMI 1390X X X X Extracts X X X X X X X X Extracts X X X X ..... d/2013 - - - Dated:- 12-1-2015 - SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R. SOOD, ACCOUNTANT MEMBER Appellant By : Shri M.R. Sharma Respondent By : Shri. Amarveer Singh ORDER PER T.R.SOOD, A.M. The appeal by the assessee is directed against the order passed by the Ld. CIT(A), Chandigarh on 25/05/2013 2. In this appeal assessee has raised the following grounds 1. That the order of the Assessing Officer as upheld by the Commissioner of Income Tax (Appeals) Chandigarh is bad in law and is beyond all the cannons of law and justice. 2. That the order of the Assessing Officer as upheld by the Commissioner of Income Tax (Appeals) Chandigarh holding that the provisions of section 14 A are applicable with respect to the income entitle to deduction under the provision of section 80P(2)(d) to the appellant being a cooperative society in view of the decision of the Hon ble Delhi High Court in the case of Commissioner of Income Tax Vs. Kribhco 349 ITR Page 618 as upheld by the Hon ble Supreme Court of India is bad in law and needs to be set aside. 3. That the order of the Assessing Officer as upheld by the Commissioner of Income Tax (Appeals) Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt got merged with the decision of Hon ble Supreme Court. In this regard he relied on the decision of Hon ble Supreme Court in case of Kunhayammed And Others Vs. State of Kerala and Another, 245 ITR 360. He particularly referred to page 382 where conclusion have been drawn by the Hon ble Supreme Court and in which it has been observed that wherever an appeal lies before the Hon ble Supreme Court and that issue is decided then the order of High Court would merge with the order of Hon ble Supreme Court. 8. On the other hand Ld. DR strongly supported the order of CIT(A) and pointed out that issues has been decided by the Hon ble Punjab Haryana High Court against the assessee. 9. We have considered the rival submissions carefully and we find that admittedly the issue is covered against the assessee by the earlier decision of Tribunal which has been confirmed by the Hon ble Punjab Haryana High Court in ITA No. 530 of 2006 vide order dt. 28/03/2011. Now the only question is whether this decision has to be followed or the decision of Hon ble Delhi High Court in case of CIT Vs. Kribhco has to be followed. The issue regarding effect of dismissal of SLP was considered by the Hon b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further held that the effect of a non-speaking order of dismissal of a special leave petition without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to be that the Supreme Court had decided only that it was not a fit case where special leave should be granted. In Union of India v. All India Services Pensioners Association [1988] 2 SCC 580; AIR 1988 Hon'ble Supreme Court 501, this court has given reasons for dismissing the special leave petition. When such reasons are given, the decision becomes one which attracts article 141 of the Constitution which provides that the law declared by the Supreme Court shall be binding on all the courts within the territory of India. It, therefore, follows that when no reason is given, but a special leave petition is dismissed simpliciter, it cannot be said that there has been a declaration of law by this court under article 141 of the Constitution. It was, therefore, contended that once this court in Civil Appeal No. 424 of 1999, has dismissed the appeal it has upheld the order of the High Court in the case of the assessment year 1980-81 and it cannot take a different view for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court by moving a petition for review. May be that the Supreme Court was not inclined to exercise its discretionary jurisdiction under article 136 probably because it felt that it was said specifically in the order dismissing the special leave petition one is left merely guessing. We do not think it would be just to deprive the aggrieved person of the statutory right of seeking relief in review jurisdiction of the High Court if a case for relief in that jurisdiction could be made out merely because a special leave petition under article 136 of the Constitution had already stood rejected by the Supreme Court by a non-speaking order. 11. The court totally agreed with the decision of two Judges bench in case of V.M. Salgaocar and Bros. Pvt. Ltd. Vs. CIT [2000] 243 ITR 383 which is as under : We may refer to a recent decision, by a two-judge Bench of this court in V.M. Salgaocar and Bros. Pvt. Ltd. V. CIT[2000] 243 ITR 383; [2000]97 FIR 192; [2000] 3 Scale 240, holding that when a special leave petition is dismissed, this court does not comment on the correctness or otherwise of the order from which leave to appeal is sought. What the court means is that it does not consider it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore it. Under article 136 of the Constitution, the Supreme Court may reverse, modify or affirm the judgment decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of a petition for special leave to appeal. The doctrine of merger can, therefore, be applied to the former and not to the latter. (iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the court was not inclined to exercise its discretion so as to allow the appeal being filed. (v) If the order refusing leave to appeal is a speaking order, i.e., gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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