HOMI K. BHABHA, MUMBAI V. ITO (IT) 3(1), MUMBAI

ITA 3287/MUM/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 55588 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 20-09-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 18-05-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V V SHASTRI
• Keywords: Diversion of income; Cost of acquisition

Judgement Text

IN THE INCOME TAX APPELLATE TRIB UNAL MUMBAI BENCHES H, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI V.DURGA RAO, JM ITA NO.3287/MUM/2009 : ASST.YEAR 2006-2007 SHRI HOMI K.BHABHA 49 CUFFE PARADE COLABA, MUMBAI 400 005. PAN : AACPB8660M. VS. THE INCOME TAX OFFICER (INTERNATIONAL TAXATION) 3(1) MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI NITESH JOSHI RESPONDENT BY : SHRI V.V.SHASTRI DATE OF HEARING : 22.09.2011 DATE OF PRONOUNCEMENT :28.09.2011 O R D E R PER R.S.SYAL, AM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE LD. CIT(A) ON 31.03.2009 IN RELATION TO THE ASSESSMENT YEARS 2006-2007. 2. INITIALLY THE ASSESSEE RAISED A SOLITARY GROUND CHALLENGING THE IMPUGNED ORDER IN NOT ALLOWING DEDUCTION OF EXPENSES INCURRE D IN CONNECTION WITH THE EARNING OF SHORT TERM CAPITAL GAIN. SUBSEQUENTLY RE VISED GROUNDS WERE FILED READING AS UNDER:- THE LEARNED COMM. OF INCOME TAX (APPEALS) 10, MU MBAI HAS ERRED:- 1. IN NOT ALLOWING THE APPELLANT A DEDUCTION FOR EXPENSES INCURRED IN CONNECTION WITH EARNING OF SHORT TERM CAPITAL GAINS . HE ERRED IN NOT APPRECIATING THE NATURE OF THESE EXPENSES. ITA NO.3287/MUM/2009 SHRI HOMI K.BHABHA. 2 2. IN NOT APPRECIATING THAT THE FEES SO INCURRED W ERE A DIVERSION OF INCOME BY OVERRIDING TITLE AND HENCE OUT TO HAVE BEEN CONSIDE RED WHILE COMPUTING INCOME. 3. IN NOT APPRECIATING THAT THE FULL VALUE OF CONS IDERATION RECEIVED HAD TO BE COMPUTED AFTER DEDUCTING THE FEES WHICH HAD BEEN IN CURRED AND PAID. 4. IN NOT ADJUDICATING THAT THE FEES PAID WERE TO BE ADDED TO THE COST OF ACQUISITION / IMPROVEMENT OF ASSETS. 3. THE LEARNED A.R. SUBMITTED THAT THE GROUND TAKEN IN THE ORIGINAL MEMO OF APPEAL HAS BEEN REPEATED AS SUCH AS REVISED GROUND NO.1 AND THE GROUND NOS. 2 TO 4 ARE ADDITIONAL GROUNDS WHICH ARISE OUT OF AN ARTICU LATION OF GROUND NO.1. NO SERIOUS OBJECTION WAS RAISED BY THE LEARNED DEPARTMENTAL RE PRESENTATIVE AGAINST THE ADMISSION OF ADDITIONAL GROUNDS. WE, THEREFORE, ADM IT THESE GROUNDS AND TAKE UP THE APPEAL FOR HEARING. 4. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT TH E ASSESSEE DECLARED GROSS LONG TERM CAPITAL GAIN OF RS.67,32,921 AND SHORT TERM CA PITAL GAIN OF RS.91,87,735. THEREAFTER A DEDUCTION WAS CLAIMED IN RESPECT OF PR OFESSIONAL FEES / PROFIT SHARING FEES PAID TO ENAM ASSET MANAGEMENT CO. LTD. FOR REN DERING PORTFOLIO MANAGEMENT SERVICES AND THE NET INCOME FROM CAPITA L GAINS WAS DETERMINED AS UNDER:- LONG TERM CAPITAL GAIN RS.67,32,921 LESS: PROFESSIONAL MANAGEMENT FEES PROFIT SHARING FEES RS. 3,05,688 RS.10,09,852 ---------------- RS.13,15,540 ----------------- RS.54,17,381 ========== ITA NO.3287/MUM/2009 SHRI HOMI K.BHABHA. 3 SHORT TERM CAPITAL GAIN RS.91,87,735 LESS : PROFESSIONAL MANAGEMENT FEES PROFIT SHARING FEES RS. 4,17,141 RS.13,78,044 ---------------- RS.17,95,185 ----------------- RS.73,92,550 ========== 5. THE ASSESSING OFFICER OBSERVED THAT THE PROFESSI ONAL MANAGEMENT FEES AND PROFIT SHARING FEES (HEREINAFTER COLLECTIVELY CALLE D AS `FEES) PAID TO PORTFOLIO MANAGER WAS UNRELATED TO ANY PROFIT OR LOSS UNDER T HE HEAD `CAPITAL GAINS. THERE IS NO DISPUTE ON THE FACT THAT THE ASSESSEE CLAIMED LO NG TERM CAPITAL GAIN AS EXEMPT, WHICH WAS DULY ACCEPTED. THE A.O. DID NOT ALLOW DE DUCTION FOR FEES OF RS.17,95,185 CLAIMED BY THE ASSESSEE AGAINST THE SH ORT TERM CAPITAL GAIN, AS IT WAS, IN HIS OPINION, NOT RELATED TO THE TRANSACTIONS RES ULTING IN TO CAPITAL GAIN. IT WAS ARGUED BEFORE THE LEARNED CIT(A) THAT THE ASSESSEE WAS ENTITLED TO DEDUCTION ON ACCOUNT OF FEES AGAINST THE SHORT TERM CAPITAL GAIN , AS IT WAS DIRECTLY RELATED TO SALE OF SHARES AND HENCE SHOULD BE TAKEN AS EXPENDITURE INCURRED WHOLLY AND EXCLUSIVELY IN CONNECTION WITH TRANSFER OF SHARES. AN ALTERNATIVE ARGUMENT FOR CONSIDERING IT AS DIVERSION OF INCOME BY OVERRIDING TITLE, WAS ALSO RAISED. THE LEARNED CIT(A) WAS UNCONVINCED WITH THE ASSESSEES SUBMISSIONS. HE ECHOED THE ASSESSMENT ORDER ON THIS POINT BY HOLDING THAT SUCH CHARGES COULD NOT BE ALLOWED AS DEDUCTION U/S 48. NOW THE ASSESSEE HAS ASSAILED THE IMPUGNED ORDER IN ABOVE TERMS. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. BOTH THE SIDES HAVE PLACED ON RECORD COPIES OF THE ORDERS PASSED BY THE TRIBUNAL IN SUPPORT OF THEIR RESPECTIVE STANDS. TH E MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF DEVENDRA MOTILAL KOTHARI VS. DCIT [(2011) 50 DTR 36 9 (MUM.)] [TO WHICH ONE OF US, NAMELY, THE LD. JM IS PARTY] DECIDED THE ISSUE AGAINST THE ITA NO.3287/MUM/2009 SHRI HOMI K.BHABHA. 4 ASSESSEE BY HOLDING THAT THE PAYMENT OF FEES BY THA T ASSESSEE FOR PORTFOLIO MANAGEMENT SERVICES WAS NEITHER DIVERSION OF INCOM E BY OVERRIDING TITLE NOR COST OF ACQUISITION NOR COST OF IMPROVEMENT AND WAS CONS EQUENTLY NOT ELIGIBLE FOR DEDUCTION IN COMPUTING CAPITAL GAIN. THEREAFTER, SIMILAR ISSUE CAME UP BEFORE THE PUNE BENCH OF THE TRIBUNAL IN KRA HOLDING & TRADING P. LTD. IN ITA NO.500/PN/08 ETC., IN WHICH THE REVENUE RELIED ON THE MUMBAI BENCH ORDER IN DEVENDRA MOTILAL KOTHARI (SUPRA). VIDE ITS ORDER DATED MAY 2011 AND AFTER CONSIDERING THE CASE OF DEVENDRA MOTILAL KOTHARI (SUPRA), THE PUNE BENCH RECORDED A CONTRARY VIEW IN ASSESSEES FAVOUR. IN SO DECIDING, THE PUNE BENCH, INTER ALIA , RELIED ON THE JUDGEMENT OF THE HONBLE BOMBAY HIG H COURT IN CIT VS. SHAKUNTALA KANTILAL [(1991) 190 ITR 56 (BOM.)] . ONCE AGAIN SIMILAR ISSUE CAME UP BEFORE THE MUMBAI BENCH OF THE TRIBUNAL IN PRADEEP KUMAR HARLALKA VS. ACIT IN ITA NO.4501/MUM/2010. VIDE ITS ORDER DATED 10.08.20 11, THE MUMBAI BENCH CONSIDERED BOTH THE EARLIER DECISIONS ON THE POINT, VIZ., DEVENDRA MOTILAL KOTHARI (SUPRA) AND KRA HOLDING & TRADING P. LTD. (SUPRA) . THROUGH AN ELABORATE ORDER, THE MUMBAI BENCH IN LATTER CASE FOLLOWED THE DECISI ON IN THE CASE OF DEVENDRA MOTILAL KOTHARI (SUPRA) IN PRIORITY OVER THAT OF KRA HOLDING & TRADING P. LTD. (SUPRA). IN DECIDING SO, THE LATTER BENCH OBSERVED THAT THE DECISION OF THE PUNE BENCH IN KRA HOLDING & TRADING P. LTD. IS PRIMARILY BASED ON THE JUDGEMENT OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF SHAKUNTALA KANTILAL (SUPRA), WHICH HAS BEEN SUBSEQUENTLY HELD TO BE NOT A GOOD L AW BY THE HONBLE BOMBAY HIGH COURT IN CIT VS. ROSHANBABU MOHAMMED HUSSEIN MERCHANT [(200 5) 275 ITR 231 (BOM.)] . AS THE LATER JUDGEMENT OVERRULING THE EARLIER JUD GEMENT WAS NOT BROUGHT TO THE NOTICE OF THE PUNE BENCH, THE MUMBAI BENCH OF THE TRIBUNAL IN PRADEEP KUMAR HARLALKA (SUPRA) CHOSE TO FOLLOW THE DECISION IN THE CASE OF DEVENDRA MOTILAL KOTHARI (SUPRA), THEREBY DECIDING THE ISSUE AGAINST THE ASSESSEE. THE POSITION DISCUSSED ABOVE HAS BEEN FAIRLY ADMITT ED BY BOTH THE SIDES. ITA NO.3287/MUM/2009 SHRI HOMI K.BHABHA. 5 7. FROM THE ABOVE DISCUSSION IT IS SEEN THAT THE FIRST ORDER ON THIS ISSUE WAS PASSED AGAINST THE ASSESSEE IN DEVENDRA MOTILAL KOTHARI (SUPRA). THE SECOND ORDER, IN THE POINT OF TIME BY THE PUNE BENCH IN KRA HOLDINGS (SUPRA), DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE AFTER CONSIDERI NG THE FIRST ORDER. THIRD ORDER, BEING THE LATEST IN THE POINT OF TIME IN PRADEEP KUMAR HARLALKA (SUPRA), DECIDED THE ISSUE AGAINST THE ASSESSEE AFTER CONSIDERING BO TH THE EARLIER ORDERS. NOT ONLY THAT, THE THIRD ORDER ALSO TOOK NOTE OF THE FACT T HE BASIS OF THE PUNE BENCH ORDER, BEING THE JUDGMENT OF THE HONBLE JURISDICTIONAL HI GH COURT IN SHAKUNTALA KANTILAL (SUPRA), ALREADY STOOD OVERRULED BY A SUBSEQUENT JUDGMENT O F THE HONBLE BOMBAY HIGH COURT IN CIT VS. ROSHANBABU MOHAMMED HUSSEIN MERCHANT (SUPRA), WHICH FACT WAS NOT BROUGHT TO THE NOTICE OF THE BE NCH. NO OTHER ORDER, IN FAVOUR OF THE ASSESSEE, HAS BEEN BROUGHT TO OUR NOT ICE BY THE LD. AR. ACCORDINGLY IT IS VIVID THAT THE MAJORITY OPINION (IN TERMS OF THE NUMBER OF ORDERS) ON THE ISSUE AND ALSO THE LATEST ORDER (IN THE POINT OF TIME) T OGETHER WITH THE SPECIAL CIRCUMSTANCES OF THE PUNE BENCH CASE (IN CONSIDERIN G AN OVERRULED JUDGMENT), BRING US TO A STAGE WHERE THE CURRENT AND THE MAJO RITY VIEW TAKEN BY THE TRIBUNAL SO FAR ON THE POINT, IS AGAINST THE ASSESSEE. 8. THE LEARNED COUNSEL FOR THE ASSESSEE VEHEMENTLY ARGUED THAT CERTAIN IMPORTANT ASPECTS OF THE MATTER WERE NOT TAKEN INTO CONSIDERATION BY THE MUMBAI BENCHES OF THE TRIBUNAL IN BOTH THE CASES IN DECIDI NG THE ISSUE AGAINST THE ASSESSEE. IT WAS ARGUED THAT THERE WAS NO BASIS FOR EXCLUDING FEES PAID BY THE ASSESSEE TO HIS PORTFOLIO MANAGER FROM THE COMPUTATION OF INCOME UN DER THE HEAD `CAPITAL GAINS AS THERE WAS NO OTHER PURPOSE FOR ITS INCURRING, EX CEPT IN CONNECTION WITH THE PURCHASE AND SALE OF SHARES. REFERRING TO AGREEMEN T OF THE ASSESSEE WITH THE PORTFOLIO MANAGER, ENAM ASSET MANAGEMENT CO. LTD., THE LEARNED A.R. EXPLAINED THAT THE ASSESSEE AGREED TO PLACE A SUM OF RS.2.25 CRORE AT THE DISCRETION OF HIS ITA NO.3287/MUM/2009 SHRI HOMI K.BHABHA. 6 PORTFOLIO MANAGER, WHICH WAS TO BE USED FOR PURCHA SE AND SALE OF SECURITIES ETC. REFERRING TO VARIOUS CLAUSES ABOUT THE CONSIDERATIO N PAYABLE TO THE PORTFOLIO MANAGER, HE STATED THAT IT WAS AT HALF PERCENT OF T HE NET ASSET VALUE (MARKET VALUE OF ASSETS INCLUSIVE OF ALL SECURITIES AND CASH BALANCE S) UNDER MANAGEMENT AT THE BEGINNING OF EACH QUARTER AND FURTHER THE PORTFOLIO MANAGERS WERE ENTITLED TO A RETURN BASED FEE CALCULATED AT THE RATE OF 20% PER ANNUM OF THE PROFITS IN EXCESS OF 15% OF THE PROFITS AFTER DEDUCTING ALL THE EXPENSES . THE SUM AND SUBSTANCE OF HIS SUBMISSIONS WAS THAT SUCH FEES PAID BY THE ASSESSEE HAS DIRECT RELATION WITH THE INCOME ARISING FROM THE TRANSFER OF SHARES AND HENC E THE SAME SHOULD BE ALLOWED AS DEDUCTION, EITHER BY CONSIDERING IT AS DIVERSION OF INCOME BY OVERRIDING TITLE FROM THE SALE PROCEEDS; OR AS PART OF THE COST OF ACQUIS ITION OF THE SHARES; OR ALTERNATIVELY AS AN EXPENDITURE INCURRED WHOLLY AND EXCLUSIVELY I N CONNECTION WITH THE TRANSFER OF SHARES. THESE ASPECTS CONSTITUTE THREE ADDITIONA L GROUNDS STATED TO BE ARTICULATION OF THE MAIN GROUND ON DISALLOWANCE OF THE AMOUNT OF FEES. HE RELIED ON CERTAIN JUDGMENTS TO DRIVE HOME HIS POINT OF VIEW ON DEDUCT IBILITY OF THE FEES. IN THIS PROCESS, HE ALSO TOOK US THROUGH THE JUDGMENT OF TH E HONBLE SUPREME COURT IN CIT VS. SITALDAS TIRATHDAS (1961) 41 ITR 367 (SC) , WHICH HAS BEEN CONSIDERED BY THE MUMBAI BENCH IN DEVENDRA MOTILAL KOTHARI (SUPRA), TO ARGUE THAT THE RATIO DECIDENDI OF THIS JUDGMENT WAS NOT PROPERLY UNDERSTOOD B Y THE MUMBAI BENCH IN HOLDING THAT THERE WAS NO DIVERSION OF INCOME. 9. SOUNDING A CONTRA NOTE, THE LD. DR STAT ED THAT THERE WAS NO INFIRMITY IN THE VIEW TAKEN BY THE AUTHORITIES BELOW AS THE FEES HAD NO DIRECT RELATION WITH THE PURCHASE OR SALE OF SHARES AND HENCE WAS LIABLE TO BE EXCLUDED FROM CONSIDERATION. HE VIGOROUSLY ACCENTUATED ON THE ORDERS PASSED BY T HE MUMBAI BENCHES AND CONTENDED THAT ALL THE ASPECTS NOW RAISED ON BEHALF OF THE ASSESSEE, HAVE BEEN ALREADY CONSIDERED AND DECIDED AGAINST THE ASSESSEE AND THERE WAS NOTHING NEW TO JUSTIFY GOING AWAY FROM THE EARLIER VIEW. ITA NO.3287/MUM/2009 SHRI HOMI K.BHABHA. 7 10. WE ARE NOT INCLINED TO ACCEPT THE SUBMISSIONS T ENDERED BY THE LD. AR THAT THE MUMBAI BENCHES OF THE TRIBUNAL HAVE NOT PROPERLY AP PRECIATED THE MATTER IN RIGHT PERSPECTIVE IN DECIDING THE ISSUE AGAINST THE ASSES SEE. IT CAN BE EASILY NOTICED THAT THE FACTS AND CIRCUMSTANCES OF THE CASE IN QUESTION AND THE TWO CASES DECIDED BY MUMBAI BENCHES ARE SIMILAR. IT IS AXIOMATIC THAT TH E NATURE OF SERVICES PROVIDED BY ANY PORTFOLIO MANAGER CANNOT BE MATERIALLY DIFFEREN T, AS HAS BEEN FAIRLY CONCEDED BY THE LD. AR DURING THE COURSE OF HEARING. IT IS F URTHER MANIFEST THAT ALL THE CONTENTIONS RAISED BEFORE US, BEING THE TREATMENT O F FEES AS COST OF ACQUISITION OF SHARES; OR EXPENSES IN CONNECTION WITH TRANSFER OF SHARES; OR DIVERSION OF INCOME BY OVERRIDING TITLE, HAVE BEEN ELABORATELY DISCUSSED I N THESE TWO CASES. AFTER CONSIDERING ALL THE ASPECTS OF THE ISSUE THREADBARE , THE TRIBUNAL HAS HELD IN BOTH THESE CASES THAT THE FEES CANNOT FORM PART OF COMPU TATION OF CAPITAL GAINS U/S 48 AND HAS TO BE IGNORED. IT IS THE ONLY ISSUE IN THE PRESENT APPEAL AND THE FACTS ARE IN PARI MATERIA WITH THOSE CONSIDERED AND DECIDED BY THE MUMBAI BE NCHES. 11. THE ARGUMENTS ADVANCED BY THE ASSESSEE ON MERITS ARE AN ATTEMPT TO PERSUADE US FOR NOT FOLLOWING THE AFORENOTED VIEW T AKEN AGAINST THE ASSESSEE. WE ARE NOT IMPRESSED WITH THIS ARGUMENT. JUDICIAL DIS CIPLINE REQUIRES THAT WHEN A PARTICULAR ISSUE HAS BEEN DECIDED BY A BENCH, THEN THE SUBSEQUENT CO-ORDINATE BENCHES SHOULD NORMALLY FOLLOW THE SAME. AT THE SAM E TIME, WE WANT TO CLARIFY THAT THERE ARE NO FETTERS ON THE POWERS OF THE SUBSEQUEN T BENCHES TO DOUBT THE CORRECTNESS OF THE EARLIER ORDER, IF THEY ARE NOT C ONVINCED WITH IT. WHEREAS FOLLOWING THE EARLIER DECISION IS A RULE, CALLING I NTO QUESTION ITS CORRECTNESS IS ONLY AN EXCEPTION. UNLESS THERE ARE COMPELLING REASONS FOR NOT FOLLOWING THE EARLIER VIEW, SUCH AS, IF IT IS INCONSISTENT WITH JUDGMEN T OF THE HONBLE SUPREME COURT OR THAT OF THE JURISDICTIONAL HIGH COURT OR EARLIER DE CISIONS OF THE SAME RANK; OR IF IT IS SUB SILENTIO ; OR IF IT IS RENDERED PER INCURIAM IN THE SENSE THAT IT IS PATENTLY ITA NO.3287/MUM/2009 SHRI HOMI K.BHABHA. 8 INCONSISTENT WITH THE STATUTORY OR SETTLED LEGAL PO SITION, THE SAME SHOULD BE RESPECTED AND ADHERED TO BY THE SUBSEQUENT BENCHES SO THAT CONSISTENCY IN THE APPROACH OF THE TRIBUNAL IS ACHIEVED. THE ABOVE RE FERRED EXCEPTIONS CAN BE CLASSIFIED INTO TWO CATEGORIES. FIRST, WHEN THERE IS A DIRECT CONTRARY JUDGMENT OF THE HONBLE SUPREME COURT OR THAT OF THE HONBLE J URISDICTIONAL HIGH COURT ON THE POINT, RENDERED PRIOR TO OR AFTER THE EARLIER TRIB UNAL ORDER, THE LATER BENCH WOULD BE FULLY JUSTIFIED IN DIFFERING FROM THE EARLIER CONTR ARY VIEW AND FOLLOWING THE HIGHER WISDOM. SECOND, WHEN THE SUBSEQUENT BENCH PERCEI VES EARLIER VIEW TO BE RENDERED PER INCURIAM OR SUB SILENTIO ETC., THE RIGHT COURSE FOR IT IS TO MAKE A REFERENCE TO THE PRESIDENT OF THE TRIBUNAL FOR CONS TITUTION OF A SPECIAL BENCH ON THE POINT SO THAT THE LARGER BENCH MAY CONSIDER WHETHER THE EARLIER VIEW IS CORRECT OR THE PERCEPTION OF THE LATTER BENCH IS CORRECT. 12. ORDINARILY NEITHER THE ASSESSEE NOR TH E REVENUE CAN BE ALLOWED TO REARGUE THE SAME ISSUE OVER AND OVER AGAIN, WHEN IT HAS ALR EADY BEEN DECIDED BY A CO- ORDINATE BENCH OF THE TRIBUNAL. IF SUCH A COURSE I S ALLOWED, THEN EVERY SINGLE REPETITIVE ISSUE WOULD REQUIRE RECONSIDERATION TIME AND AGAIN BECAUSE THE AGGRIEVED PARTY WOULD ALWAYS TRY TO CONVINCE THE LATER BENCH OVER ITS POINT OF VIEW. FOLLOWING THE EARLIER ORDER OR MAKING A REFERENCE T O THE SPECIAL BENCH DEPENDS ON THE SATISFACTION OF THE BENCH ABOUT THE CORRECTNESS OR OTHERWISE OF THE EARLIER ORDER AND NOT THAT ON THE VIEW POINT OF THE AGGRIEVED PAR TY. IT IS ONLY WHEN A SUBSEQUENT BENCH, ON BEING SEIZED OF THE MATTER, FINDS ITSEL F UNABLE TO ENDORSE THE EARLIER VIEW, EITHER SUO MOTU OR ON THE ARGUMENTS OF THE PARTIES, THAT IT MAY MA KE REFERENCE FOR THE CONSTITUTION OF THE SPECIAL BENCH. THE PAR TY DISSATISFIED WITH THE EARLIER VIEW CANNOT COMPEL THE LATER BENCH TO EITHER TAKE A CONTRARY VIEW OR MAKE A REFERENCE FOR THE CONSTITUTION OF THE SPECIAL BENCH . THUS IT FOLLOWS THAT ONCE A PARTICULAR VIEW IS TAKEN, THE SUBSEQUENT BENCHES OF THE TRIBUNAL BECOME FUNCTUS ITA NO.3287/MUM/2009 SHRI HOMI K.BHABHA. 9 OFFICIO ON THAT ISSUE, SUBJECT TO THE EXCEPTIONS DISCUSSED SUPRA. NEEDLESS TO MENTION AT THIS JUNCTURE THAT THE PARTY UNCONVINCED WITH THE TRIBUNAL ORDER IS NOT WITHOUT REMEDY AS THE ACT ENSHRINES THE PROVISIONS ENABLING IT TO APPEAL TO THE HONBLE HIGH COURT AGAINST THE ORDER AND CONVINCE I T ABOUT ITS STAND. 13. WE ARE REMINDED OF THE WELL KNOWN LATIN MAXIM ` STARE DECISIS , WHICH MEANS TO STAND BY THE THINGS DECIDED. IT EXPRESSES THE UNDERLYING BASIS OF THE DOCTRINE OF PRECEDENT, WHICH, IN TURN, MEANS TO ABI DE BY THE FORMER PRECEDENT WHEN THE SAME POINTS ARISES AGAIN IN LITIGATION. IT HAS GOT THE SEAL OF APPROVAL FROM THE HONBLE SUPREME COURT IN SEVERAL CASES INCLUDING UNION OF INDIA VS. AZADI BACHAO ANDOLAN (2003) 263 ITR 706 (726,727) (SC) . THE MAXIM STARE DECISIS PROVIDES THAT WHEN A POINT OF LAW HAS BEEN DECIDED, IT TAKES THE FORM OF A PRECEDENT WHICH IS TO BE FOLLOWED SUBSEQUENTLY AND SHOULD NOT NORMALLY BE DEPARTED FROM. A DECISION WHICH IS FOLLOWED FOR A LONG TIME WILL GEN ERALLY BE FOLLOWED, EVEN THOUGH THE COURT BEFORE WHOM THE MATTER ARISES AFTERWARDS, MIGHT BE OF DIFFERENT VIEW. 14. ADVERTING TO THE FACTS OF THE PRESENT CASE , WE FIND THAT THE ISSUE RAISED BEFORE US HAS BEEN PREDOMINANTLY DECIDED IN THE ABO VE REFERRED TWO CASES AGAINST THE ASSESSEE AFTER MAKING THOROUGH ANALYSIS OF THE ISSUE, DEALING WITH ALL THE ASPECTS NOW RAISED BY THE LD. AR BEFORE US. THESE C ASES DO NOT FALL INTO THE EXCEPTIONS, AS DISCUSSED SUPRA , JUSTIFYING DEPARTURE FROM THE EARLIER VIEW. WE A RE, THEREFORE, NOT INCLINED TO REVISIT ALL THE RELEVANT FACTS AND THE LEGAL POSITION ON IT WITH A VIEW TO TEST THE CORRECTNESS OF THESE ORDERS . RESPECTFULLY FOLLOWING THE RULE OF PRECEDENT, WE REFUSE TO TAKE A CONTRARY VIEW FRO M THAT EXPRESSED BY THE MUMBAI BENCHES IN THE AFORE-NOTED CASES. THE DISALLOWANCE IS THUS SUSTAINED AND RESULTANTLY THE IMPUGNED ORDER IS UPHELD. ITA NO.3287/MUM/2009 SHRI HOMI K.BHABHA. 10 15. IN THE RESULT, THE APPEAL STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 28 TH DAY OF SEPTEMBER, 2011. SD/- SD/- (V.DURGA RAO) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 28 TH SEPTEMBER, 2011. DEVDAS* COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) - X, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.