TMI Blog2018 (1) TMI 1585X X X X Extracts X X X X X X X X Extracts X X X X ..... he result will only be undue harassment to assessee and chaos in administration of tax laws. Hon ble Gujarat High Court in Sayaji Iron and Engineering Co. v. CIT [ 2001 (7) TMI 70 - GUJARAT HIGH COURT] reiterated that no Tribunal of fact has any right or jurisdiction to come to a conclusion entirely contrary to the one reached by another bench of the same Tribunal on the same facts, and if a bench of a Tribunal on identical facts is allowed to come to a conclusion directly opposed to the conclusion reached by another bench of the Tribunal on an earlier occasion, that will be destructive of the institutional integrity itself. We follow the decision of the Tribunal mentioned hereinbefore and dismiss all the grounds of appeal filed by the Revenue in its appeal. CIT(A) directed the AO to assessee the total income of the assessee in accordance with the order of the ITAT in ICICI Prudential Life Insurance Co. Ltd. and then give effect to the provisions of section 72 of the Act in respect of carry forward of losses - HELD THAT:- As the above direction of the Ld. CIT(A) is based on facts and law, we uphold the same. Accordingly, we dismiss this ground of appeal. Reduction of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct that this decision of the ITAT was not accepted by the Department and appeal u/s 260A of the Income Tax Act. 1961 has been filed. 2 On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in relying on the order of the ITAT in the case of ICICI Prudential Life Insurance Co Ltd for A.Y. 2005-06 to A.Y. 2008-09, in concluding that transfer between Share Holders Account and Policy Holder's Account is tax neutral and not taxable u/s.44 of the Act r.w. Rule 2 of the First Schedule, without appreciating the fact that this decision of the ITA T was not accepted by the Department and appeal u/s 260A of the Income Tax Act, 1961 has been filed. 3 On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in relying on the order of the ITAT the case of ICICI Prudential Life Insurance Co Ltd A.Y. 2005-06 to A Y 2008-09,in interpreting Section 44 r.w. Rule 2 of the First Schedule that the Legislature consciously omitted incorporation of the provision of Insurance Regulatory and Development Authority Act 1999 and Regulations made there under in Rule 2 of the First Schedule which 'refers' only to un-amended Insurance Act 1938 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led. 7 On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in relying on the order of the ITAT in the case of ICICI Prudential Life Insurance Co. Ltd. for AY 2005-06 to AY 2008-09 in deleting the addition made on account of claim of 100% depreciation ignoring the facts that Actuarial surplus is determined on the basis of the total assets of the company and therefore by not capitalizing the above assets, the assets of the assessee-company are under-stated in the books and thereby it has an impact of reducing the surplus or increase in the deficit and therefore, the assets so written off are also accordingly required to be considered as part of the surplus and taxable under section 44 of the IT Act, without appreciating the fact that this decision of the ITAT was not accepted by the Department and appeal u/s. 260A of the Income Tax Act, 1961 has been filed. 8 On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in relying on the order of the ITAT in the case of ICICI Prudential Life Insurance Co. Ltd. for AY 2005-06 to AY 2008-09, in failing to appreciate that negative reserve has an impact of reducing the taxable su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... using and Leasing Ltd. v. CIT 257 ITR 235, by following the judgment of the Supreme Court in UOI v. Kamlakshi Finance Corporation Ltd. AIR 1992 SC 711, 712 has ruled thus: The principles of judicial discipline require that the orders of the higher appellate authorities should be followed unreservedly by the subordinate authorities. The mere fact that the order of the appellate authority is not acceptable to the Department - in itself an objectionable phrase and is the subject-matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent court. If this healthy rule is not followed, the result will only be undue harassment to assessee and chaos in administration of tax laws . Carrying this principle further, the Hon ble Gujarat High Court in Sayaji Iron and Engineering Co. v. CIT 253 ITR 749 reiterated that no Tribunal of fact has any right or jurisdiction to come to a conclusion entirely contrary to the one reached by another bench of the same Tribunal on the same facts, and if a bench of a Tribunal on identical facts is allowed to come to a conclusion directly opposed to the conclusion reached by another bench of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , ought to have decided on the relief himself, and directed the ACIT to assess the total income of the appellant based thereon, without the necessity of any further verification of facts. 5. Without prejudice to ground nos. 2 to 4 above, on the facts and circumstances of the case and in law, the CIT(A) ought to have held that an amount of ₹ 10,18,60,000/- which was transferred from the Shareholders' Account and formed part of the surplus computed by the ACIT, was allowable as a deduction in computing the loss in the Shareholders' 6. Without prejudice to ground nos. 2 to 5 above, the CIT(A) ought to have held that the transfer from the Shareholders' Account of ₹ 10,18,60,000/- to the Policyholders' Account, does not result in income chargeable to tax. 7. On the facts and circumstances of the case and in law, the CIT(A), having himself allowed ground no. 5 raised before him, ought to have directed the ACIT to assess the total income of the Appellant on the basis that the income in the Shareholders' Account was assessable under the head 'Profits and gains from business or profession' and not under the head income from other sources' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee. The 1st ground of appeal, being general in nature, is thus covered also. Regarding the 4th ground of appeal raised by the assessee, we may say that the Ld. CIT(A) has directed the AO to compute, after verification, the total income of the assessee in accordance with the order passed by the ITAT, Mumbai Bench in the case of ICICI Prudential Life Insurance Co. Ltd. As he has directed the AO to follow the above order of the Coordinate Bench, we do not find any infirmity therein. Therefore, we dismiss the 4th ground of appeal. Now we come to the 8th ground of appeal. It relates to deduction of provision for fringe benefit tax/wealth tax. Before the Ld. CIT(A), the assessee pleaded that the AO while determining the income in the Shareholder s Account(SHA), added back the amount of ₹ 7,69,438/- being provision for fringe benefit tax/wealth tax. The Ld. CIT(A) observed from the assessment order that no such amount has been added by the AO, while computing the total income of the assessee. He also held that during the course of appellate proceedings before him, the assessee has not demonstrated the same. Therefore, the Ld. CIT(A) dismissed the above ground of appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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