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TMI Blog1981 (2) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... ment years 1968-69 and 1969-70 under the terms of the agreement dated November 6, 1957, were allowable as revenue expenditure ? (2) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that it was not a case of sharing the net profit but was a case of payment of remuneration for specific services rendered by the German company to the assessee-company ? " The relevant assessment years are 1968-69 and 1969-70. At the instance of the revenue, two similar questions had been referred to us earlier and by judgment dated 16th of August, 1976, a Bench of this court, including one of us, held in favour of the revenue and against the assessee. [CIT v. Belpahar Refractories Ltd. [1977] 109 ITR 667 (Orissa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for consideration. After referring to all the aspects that were placed before the court, it has been held that the deletion was inappropriate. Mr. Mohanty for the assessee contends that the opinion given on the earlier occasion is not binding so far as the present reference is concerned, as the rule of res judicata has no application and contends that the Supreme Court has in two later cases indicated the tests in a somewhat different way and, therefore, a fresh look should be given to the matter. According to him, different tests have been applied on different occasions such as the " substance test " [Usher's Wiltshire Brewery Ltd. v. Bruce [1914] 6 TC 399 (HL)]; " Payment once or in a recurring way " test (Vallambrosa Rubber Co. Ltd. v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in IRC v. British Salmson Aero Engines Ltd. [1938] 22 TC 29, 43 (CA), the spin of a coin would decide the matter almost as satisfactorily as an attempt to find reasons' . " Before us, however, there is no dispute that the basic facts here are the same as were before the court on the earlier occasion. There is no dispute that the payments were in terms of the same obligation, i.e., under cl. 8 of the agreement. We do not think it appropriate to differ from the view expressed on the earlier occasion particularly when it is the same dispute in one and the same setting. It is true that the rule of res judicata in terms does not apply to assessment proceedings, but two exceptions have usually been indicated, namely, an earlier decision on the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Process-p. 29): " I own that it is a good deal of a mystery to me how judges, of all persons in the world, should put their faith in dicta. A brief experience on the bench was enough to reveal to me all sorts of cracks and crevices and loopholes in my own opinions when picked up a few months after delivery, and reread with due contrition." Roscoe Pound observed : " Law must be stable and yet it cannot stand still." justice Holmes joined by saying: " The truth is that the law is always approaching, and never reaching, consistency. It is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not yet been absorbed or sloughed off. It will become entirely consistent only ..... X X X X Extracts X X X X X X X X Extracts X X X X
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