TMI Blog2018 (6) TMI 1833X X X X Extracts X X X X X X X X Extracts X X X X ..... 6th January 2017, passed by the learned CIT(A) in the matter of assessment under section 143(3) of the Income Tax Act, 1961, for the assessment year 2012-13. 2. Grievances raised by the appellant are as follows: 1. The learned Commissioner of Income Tax (Appeals) erred in confirming the addition to the tune of Rs 1,63,82,140 out of the addition of Rs 3,56,64,506 made by the Assessing Officer under section 11(1B) of the Act. 2. The learned Commissioner of Income Tax (Appeals) erred in not following the decision of Calcutta High Court in the case of CIT Vs Natwarlal Chowdhury Charity Trust [(1991) 189 ITR 656 (Cal)], relied upon by the appellant in support of the proposition that the right to accumulation extends to the deemed income also. 3. Learned representatives fairly agree that the short question which requires tot be adjudicated in this case is whether or not, for the purpose of computing benefit of accumulation under section 11, deemed income under section 11(1B) is to be taken into account, and that, if this question is decided in favour of the assessee i.e. holding that deemed income is also be included for the said purpose, nothing survives for further adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a non-jurisdictional High Court is not a binding precedent for us. Our attention is invited to the judgment of Hon'ble Bombay High Court in the case of CIT v. Thana Electricity Supply Co. Ltd. (206 ITR 727) wherein Their Lordships have held so. Learned Departmental Representative submits that Godavari Devi Saraf judgment is no longer good law as it stands overruled by the later decision in the case of Thana Electricity Co. Ltd.'s case (supra). It is contended that while a non-jurisdictional High Court is not binding on us, a Special Bench decision of this Tribunal is certainly binding on us. It is submitted that this very issue has received consideration of a Special Bench of the Tribunal in the case of Nawal Kishore Sons Jewellers (87 ITD SB 407) and the Special Bench has decided the issue against the assessee. We are thus urged to follow the Special Bench decision of the Tribunal in the case of Nawal Kishore Sons (supra) and thus dismiss this preliminary issue raised by the assessee. 4. Having given our careful consideration to the rival submissions, we are inclined to uphold the objection taken by the assessee. 5. As observed by a Co-ordinate Bench of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h also noted that 'A Division Bench of the High Court should follow the decision of another Division Bench of equal strength or a Full Bench of the same High Court', and 'if one Division Bench differs with another Division Bench of the same High Court, it should refer the case to a larger Bench'. Having thus noted the proposition, Their Lordships proceeded to 'analyse the decisions of this Court, on which reliance has been placed by the learned counsel for the assessee, in support of his contention that decision of any other High Court on all India statute like Incometax Act, is binding even on this Court and on the Tribunals outside jurisdictions of that High Court'. On Godavari Devi Saraf's case (supra), which was delivered by a Division Bench of equal strength of this very Hon'ble High Court, Their Lordships took note of revenue's stand as follows : Referring to the observations of Godavari Devi (supra), that an all India Tribunal acting anywhere should follow the decisions of any other High Court on the point, it was submitted by the counsel of the revenue that this observation itself would show that the High Court was aware of the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble jurisdictional High Court's judgment in the case of Godavari Devi Saraf (supra). In this case, question before Their Lordships was as follows : Whether, on the facts and circumstances of the case, and in view of decision in the case of A.M. Sali Maricar ( 90 ITR 116), the penalty imposed on the assessee under section 140A(3) was legal? 12. The specific question before Their Lordships was whether the Tribunal, while sitting in Bombay, was justified in following the Madras High Court decision holding the relevant section as unconstitutional. Hon'ble High Court concluded as follows: It should not be overlooked that Income-tax Act is an all India statute, and if a Tribunal in Madras has to proceed on the footing that section 140A(3) was non existent, the order of penalty under that section cannot be imposed by any authority under the Act. Until a contrary decision is given by any other competent High Court, which is binding on the Tribunal in the State of Bombay (as it then was), it has to proceed on the footing that the law declared by the High Court, though of another State, is the final law of the land .......... an authority like Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee must be adopted. For this reason, in our humble understanding, the plea of the assessee deserves to be accepted. 15. We may, however, add that the observations that we have made are particularly with reference to the legal position in the jurisdiction in Hon'ble Bombay High Court, as the view so taken in Godavari Devi Saraf's case (supra) has not found favour with Hon'ble Karnataka High Court as well as Hon'ble Punjab and Haryana High Court, in the case of Patil Vijay Kumar v. Union of India ( 151 ITR 48) and CIT v. Ved Prakash (178 ITR 332). The observations made in this order are subject to this rider and, therefore, while we agree with the conclusions arrived at by a Co-ordinate Bench in Tej International (P.) Ltd. (supra), our reasons are not exactly the same as adopted by our distinguished colleagu es. 6. Yet, the coordinate bench, in the case of B N Gamadia Parsi Hunnarshala Vs ADIT (supra), decided not only to ignore this binding precedent but also had the audacity to hold that it was an incorrect decision. The coordinate bench went to the extent of observing that We are unable to persuade ourselves to agree with the view taken by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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