ACIT, CHENNAI V. M/s. Tamil Nadu State Marketing Corporation Ltd., CHENNAI

ITA 1525/CHNY/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 64487 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 03-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R VIJAYARAGHAVAN
• Keywords: Reopening of assessment; Retrospective amendment; Difference of opinion; Change of opinion; Reassessment proceedings
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI BEFORE DR. O.K. NARAYANAN, VICE-PRESIDENT A ND SHRI VIKAS AWASTHY, JUDICIAL MEMBER ITA NOS.1367 TO 1370/MDS/2012 & STAY PETITION NOS.92 TO 95/MDS/2012 ( IN ITA NOS.1367 TO 1370/MDS/2012) (ASSESSMENT YEARS: 2004-05 TO 2006-07 & 2009-10) M/S.TAMILNADU STATE MARKETING CORPORATION LTD., M/S.SUBBARAYA AIYAR, PADMANABHAN & RAMAMANI ADVOCATES NEW NO.75A, OLD NO.105A DR. RADHAKRISHNA SALAI, MYLAPORE, CHENNAI-600 004. PAN: AAACT2964P VS. ASSISTANT COMMISSIONER OF INCOME TAX, COMPANY CIRCLE-III(1) CHENNAI-600 034. (APPELLANT/PETITIONER) (RESPONDENT) ITA NOS.1525 TO 1528/MDS/2012 (ASSESSMENT YEARS: 2004-05 TO 2006-07 & 2009-10) ASSISTANT COMMISSIONER OF INCOME TAX, COMPANY CIRCLE-III(1) CHENNAI-600 034. VS. M/S.TAMILNADU STATE MARKETING CORPORATION LTD., CHENNAI. PAN: AAACT2964P (APPELLANT) (RESPONDENT) ASSESSEE BY : MR. R.VIJAYARAGHAVAN, ADVOCATE REVENUE BY : MR. SHAJI P.JACOB, ADDL. CIT DATE OF HEARING : 9 TH OCTOBER, 2012 DATE OF PRONOUNCEMENT : 30 TH OCTOBER, 2012 O R D E R PER VIKAS AWASTHY, JM: THE PRESENT BUNCH OF EIGHT APPEALS I.E. ITA NO.1367 TO 1370/MDS/2012 AND STAY PETITION NOS.92 TO 94/MDS/20 12 ITA NO.1367 TO1370/MDS/2012 ITA NOS.1525 TO 1528/MDS/2012 &S.P.NO.92 TO 95/MDS/ 12 2 RELEVANT TO THE ASSESSMENT YEARS 2004-05 2005-06, 2 006-07 AND 2009-10 RESPECTIVELY HAVE BEEN FILED BY THE A SSESSEE IMPUGNING THE COMMON ORDER OF THE CIT(A) DATED 25.0 5.2012. SIMILARLY, ITA NOS. 1525 TO 1528/MDS/2012 RELEVANT TO THE ASSESSMENT YEARS 2004-05 2005-06, 2006-07 AND 2009- 10 RESPECTIVELY HAVE BEEN FILED BY THE REVENUE IMPUGNI NG THE SAME ORDER OF THE CIT(A), CHENNAI. SINCE IN ALL TH E APPEALS/STAY PETITIONS COMMON ISSUES ARE INVOLVED, THE SAME ARE TAKEN UP TOGETHER FOR ADJUDICATION. 2. IN ITA NOS. 1367 TO 1369/MDS/2012 THE ASSESSEE H AS TAKEN ADDITIONAL GROUND OF REOPENING OF ASSESSMENT UNDER SECTION 147 OF THE ACT. THE OTHER COMMON GROUND IN ALL THE APPEALS IS WITH REGARD TO DISALLOWANCE OF DIFFERENC E IN ADDITIONAL SPECIAL PRIVILEGE FEE PAYABLE BY THE ASS ESSEE IN THE RELEVANT PREVIOUS YEAR UNDER TAMIL NADU INDIAN MADE FOREIGN SPRIT (SUPPLY BY WHOLESALE) RULES, 1983. 3. THE REVENUE IN ITS APPEALS (ITA NOS.1525 TO 1528/MDS/2012) HAS ASSAILED THE ORDER OF THE CIT(A) ON THE GROUND THAT THE CIT(A) HAS DIRECTED THE ASSESSING O FFICER TO ADOPT TWO DIFFERENT RATES AS PER THE G.OS PASSED DU RING THE ITA NO.1367 TO1370/MDS/2012 ITA NOS.1525 TO 1528/MDS/2012 &S.P.NO.92 TO 95/MDS/ 12 3 RESPECTIVE FINANCIAL YEARS INSTEAD OF PROPORTIONATE RATE ADOPTED BY THE ASSESSING OFFICER. 4. THE FIRST GROUND OF APPEAL TAKEN BY THE ASSESSEE IN ITA NOS. 1367 TO 1369/MDS/2012 IS WITH REGARD TO REOPEN ING OF ASSESSMENT UNDER SECTION 147. THE REASONS FOR REOPE NING FURNISHED BY THE ASSESSING OFFICER FOR THE ASSESSME NT YEAR 2004-05 ARE AS FOLLOWS:- FOR THE A.Y.2004-05, YOU HAVE CLAIMED ADDITIONAL VEND FEE TO THE TUNE OF ` 435, 17,13,674/- WHICH INCLUDES ENHANCED LIABILITY TOWARDS SPECIAL PRIVILE GE FEE BASED ON THE G.O. PASSED WITH RETROSPECTIVE EFFECT, AFTER THE CLOSURE OF THE FINANCIAL YEAR. FROM THE ABOVE REASON(S), IT IS EVIDENT THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT AND THE ABOVE REASON FALLS WITHIN THE MEANING OF SECTION 147 OF THE INCOME TAX ACT NECESSITATING THE REOPENING OF THE ASSESSMENT A.Y.2004-05. SIMILAR REASON FOR REOPENING OF THE ASSESSMENT WAS GIVEN BY THE ASSESSING OFFICER FOR SUBSEQUENT ASSESSMENT YEA RS AS WELL. 5. THE A.R. SUBMITTED THAT THE NOTICE UNDER SECTION 148 WAS ISSUED BEYOND THE PERIOD OF FOUR YEARS FROM THE RELEVANT ASSESSMENT YEAR. THE AR CONTENDED THAT REOPENING I S ITA NO.1367 TO1370/MDS/2012 ITA NOS.1525 TO 1528/MDS/2012 &S.P.NO.92 TO 95/MDS/ 12 4 INVALID AS THE ASSESSEE HAD FURNISHED ALL THE MATER IAL DOCUMENTS AT THE TIME OF FILING OF THE RETURN. WH ATEVER INFORMATION WAS REQUIRED TO THE ASSESSING OFFICER D URING THE COURSE OF ASSESSMENT, THE ASSESSEE HAD FURNISHED T HE SAME. THE REASSESSMENT PROCEEDINGS HAVE BEEN INITIATED ON LY AS A RESULT OF CHANGE OF OPINION AND NOT BY REASON OF FA ILURE ON THE PART OF THE ASSESSEE TO DISCLOSE ANY MATERIAL INFOR MATION. THE ASSESSEE IN SUPPORT OF HIS CONTENTIONS HAS RELIED O N THE JUDGEMENT OF THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF CIT VS. KELVINATOR OF INDIA LTD. REPORTED AS 320 ITR 561(SC). 6. ON THE OTHER HAND, THE LEARNED D.R. SUBMITTED T HAT IT IS NOT THE CASE OF MERE CHANGE OF OPINION FOR REOPENIN G OF ASSESSMENT. RATHER NO OPINION ON THE ISSUE WAS GIV EN BY THE ASSESSING OFFICER IN THE ORIGINAL ASSESSMENT. HE ST RONGLY SUPPORTED THE ORDER OF THE CIT(A) ON THE ISSUE. 7. WE HAVE HEARD BOTH THE PARTIES AND HAVE PERUSED THE ORDERS OF AUTHORITIES BELOW. A PERUSAL OF THE IMPU GNED ORDER SHOWS THAT THE CIT(A) HAS GIVEN A CATEGORIC FINDING THAT THE ASSESSING OFFICER HAD NOT CALLED FOR THE DETAILS IN RESPECT OF ITA NO.1367 TO1370/MDS/2012 ITA NOS.1525 TO 1528/MDS/2012 &S.P.NO.92 TO 95/MDS/ 12 5 SPECIAL PRIVILEGE FEE DURING THE ORIGINAL ASSESSMEN T PROCEEDINGS. THE ASSESSEE HAS FAILED TO SHOW THAT A SSESSEE HAD PROVIDED DETAILS WITH REFERENCE TO AMENDMENT IN SPECIAL PRIVILEGE FEE RATES AT THE TIME OF ORIGINAL ASSESSM ENT OR THE ISSUE WAS EVER CONSIDERED BY THE ASSESSING OFFICER DURING THE PROCEEDING UNDER SECTION 143(1). THUS, THE ISSU E WHICH HAS BEEN RAKED UP IN THE REASSESSMENT PROCEEDINGS W AS NEVER TAKEN UP BY THE ASSESSING OFFICER IN THE PROC EEDINGS UNDER SECTION 143(1) OF THE ACT. WE ARE, THEREFORE, OF THE OPINION THAT IN THE PRESENT CASE IT IS NOT THE CASE OF CHANGE OF OPINION WHICH HAS RESULTED IN INITIATION OF PROCEED INGS UNDER SECTION 147 AND 148. THEREFORE, WE UPHOLD THE FINDI NGS OF THE CIT(A) AND DISMISS THIS GROUND OF APPEAL OF THE ASS ESSEE. 8. AS REGARDS THE SECOND GROUND OF APPEAL OF THE ASSESSEE AND THE GROUND OF APPEAL OF THE REVENUE, B OTH THE ISSUES ARE INTERCONNECTED. THE COUNSEL FOR THE ASS ESSEE HAS SUBMITTED THAT IDENTICAL ISSUE HAS BEEN DECIDED BY THE CO- ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF THE A SSESSEE ITSELF IN ITA NOS.962/MDS/2010 RELEVANT TO THE ASSE SSMENT YEAR 2007-08 DECIDED ON 18.9.2012. THE COUNSEL FOR THE ITA NO.1367 TO1370/MDS/2012 ITA NOS.1525 TO 1528/MDS/2012 &S.P.NO.92 TO 95/MDS/ 12 6 ASSESSEE HAS PLACED ON RECORD A COPY OF THE ORDER O F THE TRIBUNAL IN ITA NOS.962/MDS/2010 & 964/MDS/2011 RE LEVANT TO THE ASSESSMENT YEARS 2007-08 AND 2008-09 WHEREI N THE REVENUE HAS ALSO FILED CROSS APPEALS. THE LEARNED D.R. ALSO ADMITTED THAT THE ISSUE HAS BEEN ADJUDICATED BY TH E CO- ORDINATE BENCH OF THE TRIBUNAL . HOWEVER, THE LEARN ED DR FURTHER CONTENDED THAT WHILE DECIDING THE AFORESAID APPEALS SOME OF THE CONTENTIONS OF THE REVENUE WERE NOT TAK EN INTO CONSIDERATION BY THE BENCH. THE CO-ORDINATE BENCH OF THE TRIBUNAL WHILE DECIDI NG A SIMILAR CONTROVERSY IN ITA NOS.962 & 1202/MDS/2010, 964 & 925/MDS/2011 AND 7 & 258/MDS/2012 HAS HELD AS UNDE R:- 25. COMING TO THE CHRONOLOGY OF THE EVENTS RELEVANT TO THE CASE, IT TRANSPIRES THAT THE PROVISIONS OF PROHIBITION ACT(SUPRA) EMPOWERS THE TAMIL NADU GO VT. TO IMPOSE CERTAIN FEES AND LEVIES QUA THE LIQUO R RIGHTS EVEN WITH RETROSPECTIVE EFFECT. THE RATES ETC. TO BE PAID ARE INCORPORATED IN THE 1983 RULES. WE NOTICE TH AT THE RATES CONTAINED IN THE RULES ARE SUBJECT TO PROVISI ONS OF THE ACT. BY EXERCISING THIS LEGISLATIVE AUTHORITY, THE STATE GOVT. PREFERRED TO REVISE THE WHOLE SALE RATES IN Q UESTION WITH RETROSPECTIVE EFFECT IE. FROM ` 46.35 PER LITRE TO ` 53.23 W.E.F. 1.4.2005 VIDE GO DATED 25.10.2006. A ND FROM ` 53.25 PER LITRE TO ` 57.72 PER LITRE W.E.F. 01.4.2006. THE PAGE 20 OF AUTHORIZED REPRESENTATIV ES 1 ST PAPER BOOK (SUPRA) FURTHER REVEALS THAT THIS HAS N OT BEEN DONE FOR THE FIRST TIME AS THE VERY METHODOLOG Y IS ITA NO.1367 TO1370/MDS/2012 ITA NOS.1525 TO 1528/MDS/2012 &S.P.NO.92 TO 95/MDS/ 12 7 BEING FOLLOWED SINCE VERY MANY YEARS. THEREFORE, W E CONCLUDE IT SAFELY THAT THE PRESENT IS NOT THE ONLY INSTANCE OF THE ASSESSEE MAKING PROVISION FOR SPECI AL PRIVILEGE FEES ARISING OUT OF NOTIFICATIONS HAVING RETROSPECTIVE EFFECT; THAT TOO WHICH WERE ISSUED AF TER THE END OF RELEVANT FINANCIAL YEAR. 26. MOREOVER, THE PAST HISTORY ALSO SUGGESTS THAT S O FAR AS THE LEVIES OR FEES IMPOSED BY THE TAMIL NADU STATE GOVT. IS CONCERNED, THE LD. CO-ORDINATE BENCH (SUPRA) HAD DULY ELABORATED THE SCHEME OF FEE ETC. PRESCRIBED BY THE STATE GOVT. TO BE PAID BY THE ASSESSEE IN REACHING TO THE CONCLUSION THAT THE SAI D FEES ARE NOTHING BUT CONSIDERATION PAID BY THE ASSESSEE TO THE STATE GOVT. IN LIEU OF ENJOYING EXCLUSIVE RIGHT S OF LIQUOR WHOLE SALE BUSINESS. AFTER GOING THROUGH TH E SAME, WE ALSO OBSERVE THAT IN THE SAID CASE, THERE WERE NO PLEAS RAISED ON PART OF THE REVENUE THAT IN COMPLYING WITH VARIOUS NOTIFICATIONS UNDER PROHIBI TION ACT AND RULES, THERE WAS ANY ATTEMPT BY THE ASSESS EE TO EVADE TAX BY RESORTING TO CORPORATE VEIL. THO UGH IN THE SAID CASE, THE ISSUE WAS OF VEND FEES AND ADDIT IONAL VEND FEES, BUT AT THE SAME TIME, WE ARE UNABLE TO L OOSE SIGHT OF THE FACT THAT THE MECHANISM ADOPTED BY THE STATE GOVT. WAS THE SAME IN LEVYING THE FEE IE. NOTIFICATION UNDER PROHIBITION ACT AND RULES. THE DIFFERENCE BETWEEN THE TWO INSTANCES AS WE FOUND IS THAT IN THAT CASE; UNLIKE THE INSTANT APPEAL, THE ISSUE THEREIN WAS REGARDING THE NATURE OF LIABILITY IE. WHETHER S TATUTORY OR CONTRACTUAL. IN ANY CASE, REGARDLESS OF THE DIF FERENCE BETWEEN THE TWO CASES, STILL WE CAN SAFELY CONCLUDE THAT THE DECISION OF THE LD. CO-ORDINATE BENCH STILL THR OWS LIGHT IN THE APPLICABILITY OF PROHIBITION ACT AND RULES A ND ALSO DEFINES THE NATURE OF VARIOUS FEES ETC. PAID BY THE ASSESSEE TO THE TAMIL NADU GOVT. IMPOSED BY PROHIBITION ACT & RULES. 27. SO FAR AS THE NATURE OF LIABILITY IN THE INSTAN T CASE IS CONCERNED, IN OUR CONSIDERED OPINION, THE SPECIA L PRIVILEGE FEES IS NOT A STATUTORY LIABILITY. BEC AUSE EVEN THE LD. CO-ORDINATE BENCH HAD HELD THAT THE LIABILI TY UNDER THE PROHIBITION ACT IS NOT COVERED BY SEC.43B OF THE ACT. TAKING CUE FROM THE SAME, WE ALSO FOLLOW THE SAID ITA NO.1367 TO1370/MDS/2012 ITA NOS.1525 TO 1528/MDS/2012 &S.P.NO.92 TO 95/MDS/ 12 8 DECISION AND HOLD THAT FEES AND LEVIES IMPOSED BY T HE PROHIBITION ACT AND RULES DO NOT PARTAKE THE CHAR ACTER OF A STATUTORY LIABILITY. 28. FURTHER, WE NOTICE THAT THE LIABILITY INCURRED BY THE ASSESSEE IS ALSO NOT A CONTRACTUAL LIABILITY A S WELL SINCE NO AGREEMENT EXISTED BETWEEN ASSESSEE AND TAMIL NADU GOVT. CLEARLY SPELLING OUT THAT THERE WO ULD BE YEARLY REVISION OF SPECIAL PRIVILEGE FEE. AT THE S AME TIME, SINCE THE SPECIAL PRIVILEGE FEE STOOD REVISED ON 20.7.2007 AND ASSESSEE WAS YET TO FINALIZE HIS ACCO UNT, SO IT HAD NO OTHER OPTION BUT TO MAKE A PROVISION ( SUPRA) IN ITS PROFIT AND LOSS ACCOUNT. IN THIS BACKDROP O F FACTS OF THE INSTANT CASE, WE DEEM IT APPROPRIATE TO TERM TH E LIABILITY OF SPECIAL PRIVILEGE FEE AS QUASI-STATUTO RY IN NATURE BECAUSE EVERY NON-STATUTORY LIABILITY CANNOT BE CALLED AS CONTRACTUAL LIABILITY. 29. WE ALSO HAVE DULY CONSIDERED REVENUES PLEA RE VALIDITY OF GO NOTIFICATION (SUPRA). IN THIS REGAR D, THE AUTHORISED REPRESENTATIVE HAS PLACED ON RECORD THE RELEVANT CORRESPONDENCE IN SUPPORT OF THE PLEA THAT THE SAME HAD BEEN DULY PUT UP BEFORE THE LEGISLATIVE ASSEMBLY OF THE TAMIL NADU STATE (SUPRA). MEANING THEREBY THAT THE GO DATED 20.7.2007 HAS BEEN VALIDI TY LEGISLATED PER THE SPIRIT OF PROHIBITION ACT & RUL ES. THEREFORE, THE LEGISLATIVE REQUIREMENTS OF AMENDMEN T INCORPORATED IN THE RULES FRAMED UNDER THE PROHI BITION ACT STAND SATISFIED. 30. SO FAR AS PLEA OF REVENUE LIFTING CORPORATE VEI L (SUPRA) IS CONCERNED, IT EMERGES THAT ALTHOUGH SECR ETARY LEVEL OFFICERS OF TAMIL NADU GOVT. ARE IN THE ASSES SEES BOARD OF DIRECTORS AND ALSO ITS MD IS ONE OF THE SA ID OFFICERS, HOWEVER, THIS ITSELF CANNOT ACT AS THE BA SIS FOR PROCEEDING ON THE ASSUMPTION AS THEY ARE NOT HOLDIN G THE DIRECTORSHIP OF ASSESSEE IN THEIR INDIVIDUAL CA PACITIES BUT ON BEHALF OF THE GOVT. OF TAMIL NADU. SO, AFTE R LIFTING THE VEIL, WHAT WE SEE IS THE STATE GOVT. BEING ASSESSEES OWNER HAS NOMINATED ITS ABOVE SAID HIGH LEVEL OFFICER TO ACT AS ITS DIRECTORS. IN SUCH AN EVENT, THERE CAN BE NO TWO OPINIONS AT ALL THAT BY VIEW OF EXERCISING LEGISLATIVE JURISDICTION UNDER CONSTITUT ION OF ITA NO.1367 TO1370/MDS/2012 ITA NOS.1525 TO 1528/MDS/2012 &S.P.NO.92 TO 95/MDS/ 12 9 INDIA; THE SPECIAL PRIVILEGE FEE HAS BEEN INCREASED WITH RETROSPECTIVE EFFECT; WITHOUT ANY COLORABLE EXERCIS E OF POWER. HENCE, WE HOLD THAT SINCE THERE IS NO CASE FOR LIFTING VEIL. 31. MOREOVER, IT IS ALSO CLEAR THAT ON THE CLOSING DAY OF A.Y. 2007-08 IN QUESTION I.E. 0N 31.3.2007, THE ASSESSEE COULD NOT HAVE FORESEEN INCREASED FEE TO B E LEVIED BY THE TAMIL NADU GOVT. UNDER PROHIBITION ACT AND RULES VIDE GO DATED 20.7.2007. THAT TOO W.E.F. 01.4.2006 LEADING TO HIKE OF SPECIAL PRIVILEGE FEE FROM ` 53.25 PER LITRE TO ` 57.72 PER LITRE. HOWEVER, WHEN ITS ACCOUNTS WERE BEING FINALIZED, THE GO DATED 20.7.20 07 HAD COME INTO BEING W.E.F. 01.4.2006 (SUPRA). HENCE , BY NO STRETCH OF IMAGINATION COULD WE SAY THAT THE ASS ESSEE OUGHT TO HAVE IGNORED THE SAME AND PROCEEDED WITH T HE FINAL RETURN ON THE BASIS OF UNREVISED RATES. AS W E FIND FROM THE LANGUAGE INCORPORATED IN GO DATED 20.7.200 7 (SUPRA) AND ALSO HIGHLIGHTED BY THE LD. A.R., THE W ORD SUBSTITUTED IMPLIES THAT FOR ALL INTENTS AND PUR POSES, THE EARLIER SPECIAL PRIVILEGE FEES RATE NO MORE EXISTS. TO PUT IT IN OTHER WORDS, IT STOOD EFFACED. THERE CAN BE NO DISPUTE BETWEEN THE PARTIES THAT THIS LIABILITY IS NOT ALLOWABLE AS A PROVISION FOR THE PREVIOUS YEAR ENDE D ON 31.3.2007, IT HAD TO BE ALLOWABLE QUA THE YEAR ENDE D ON 31.3.2008 WHEN ACTUAL PAYMENT WAS EFFECTIVE. THIS, AT THE BEST IS ONLY AN EXPLANATION AND BEING A RECURRI NG PHENOMENON, THERE WOULD NOT BE ANY REVENUE LOSS. I N OUR CONSIDERED OPINION, HAVING ALLOWED THE ASSESSEE TO FOLLOW THIS VERY METHODOLOGY FOR VERY MANY YEARS (SUPRA), IT IS HARDLY JUSTIFIABLE FOR REVENUE TO FO RCE THE ASSESSEE FOR CHANGING ITS A.Y. IN HAND AS IT WILL O NLY RESULT IN CREATION OF ARTIFICIAL DISTURBANCE AND LE VY OF TAX. THEREFORE, WE CONCLUDE THAT THE RULE OF CONSISTENC Y IN SUCH A CASE, CANNOT BE GIVEN A GO BYE UNLESS IT CONTRAVENES A LEGAL PROVISION OR THE ASSESSEES CLA IM IS APPARENTLY UNALLOWABLE BY ITS VERY NATURE. 32. ADVERTING TO THE VOLUMINOUS CASE LAWS METICULOUSLY CITED BY LD. D.R., WE HOLD THAT ALL TH ESE WERE INSTANCES WHERE AN ASSESSEE COULD NOT MAKE EVE N A PROVISION DURING THE RELEVANT PREVIOUS YEAR DUE T O LACK OF KNOWLEDGE OR AWARENESS OF LIABILITY EVEN AT THE TIME OF ITA NO.1367 TO1370/MDS/2012 ITA NOS.1525 TO 1528/MDS/2012 &S.P.NO.92 TO 95/MDS/ 12 10 FINALIZATION OF ACCOUNTS AND THEREFORE FORCED TO CL AIM THE SAME IN THE SUBSEQUENT YEAR. THE DICTUM REGARDING ACCRUAL OF LIABILITY REFERABLE TO EARLIER YEARS AS HELD BY VARIOUS HONBLE COURTS CANNOT BE APPLIED WHERE THE CIRCUMSTANCES ARE EXACTLY TO THE CONTRARY. IN OUR VIEW, THE CASE LAW OF JUDICIAL PRONOUNCEMENTS AND PRECEDE NTS CANNOT BE RELIED UPON WHEN FACTS AND CIRCUMSTANCES OF THE CASE IN HAND LEAD TO A DIFFERENT CONCLUSION. AS IN THE INSTANT CASE, THE ASSESSEE HAS CHOSEN TO MAKE A PROVISION IN ITS P&L ACCOUNT AND CLAIM THE EXPENSES IN THE SAME YEAR ITSELF. THIS IN OUR OPINION, IS IN CONSONANCE WITH THE FUNDAMENTALS OF REAL INCOME F OR THE PURPOSE OF TAXATION. 33. IN VIEW OF OUR ABOVE DETAILED EXAMINATION OF FACTS AND RELEVANT RECORD, WE DECIDE THE ISSUE NO.1 IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. 9. IN THE PRESENT CASE ALSO WE OBSERVE THAT FOR TH E RELEVANT ASSESSMENT YEARS SIMILAR G.OS HAVE BEEN PA SSED BY THE STATE GOVERNMENT ENHANCING THE LEVY OF DUTY FRO M RETROSPECTIVE DATE. THE A.R. HAS PLACED ON RECORD THE COPIES OF VARIOUS G.OS ISSUED BY THE STATE GOVERNMENT FROM TIME TO TIME. THE DETAILS OF G.OS AND THEIR EFFECTIVE DATE ARE REPRODUCED HEREIN BELOW:- S.NO. G.O.(MS)NO. DATED EFFECTIVE FROM A.Y. AMENDMENT INCREASE IN SPECIAL PRIVILEGE FEE FROM TO 1. 49 19.02.2004 29.11.2003 2004-05 ` 19.37 ` 29.78 2. 338 29.10.2004 29.11.2003 2004-05 ` 29.78 ` 43.37 3. 65 27.10.2005 01.04.2004 2005-06 ` 43.37 ` 46.35 4. 74 25.10.2005 25.10.2006 2006-07 ` 46.35 ` 53.23 5. 38 20.07.2008 01.04.2008 2009-10 ` 66.60 ` 69.72 ITA NO.1367 TO1370/MDS/2012 ITA NOS.1525 TO 1528/MDS/2012 &S.P.NO.92 TO 95/MDS/ 12 11 A PERUSAL OF THE ORDER DATED 18.9.2012 SHOWS THAT T HE CASE OF THE ASSESSEE IS SQUARELY COVERED BY THE ORDER OF TH E CO- ORDINATE BENCH OF THE TRIBUNAL. RESPECTFULLY FOLLOW ING THE SAME , WE ALLOW THE SECOND GROUND OF APPEAL OF THE ASSESSEE AND DISMISS THE GROUNDS OF APPEAL OF THE REVENUE. 10. IN THE RESULT, APPEALS OF THE ASSESSEE ARE PART LY ALLOWED AND THE APPEALS OF THE REVENUE ARE DISMISSED IN TH E ABOVE SAID TERMS. SINCE THE APPEALS OF THE ASSESSEE ARE D ISPOSED OF, THE STAY PETITIONS FILED BY THE ASSESSEE HAVE B ECOME INFRUCTUOUS AND THE SAME ARE DISMISSED AS SUCH. ORDER PRONOUNCED IN THE OPEN COURT ON TUESDAY, TH E 30 TH DAY OF OCTOBER, 2012 AT CHENNAI. SD/- SD/- (DR. O.K.NARAYANAN ) (V IKAS AWASTHY) VICE PRESIDENT JUDICIAL MEMBER CHENNAI, DATED THE 30 TH OCTOBER, 2012. SOMU COPY TO: (1) APPELLANT (4) CIT(A) (2) RESPONDENT (5) D.R. (3) CIT (6) G.F.