M/s Punjab State Coop Milk Producers Federation Ltd., Chandigarh V. DCIT, Chandigarh

ITA 97/CHANDI/2015

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9781 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-04-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 28-01-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JYOTI KUMARI
• Keywords: Question of law; Non passing of speaking order
• Section: 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES A CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R. SOOD, ACCOUNTANT MEMBER ITA NO. 97/CHD/2015 ASSESSMENT YEAR : 2011-12 M/S PUNJAB STATE COOP MILK PRODUCERS VS THE DCIT, FEDERATION LTD., CIRCLE 4(1), CHANDIGARH CHANDIGARH PAN NO.AAAAP1208Q (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI M.R. SHARMA RESPONDENT BY : SMT. JYOTI KUMARI DATE OF HEARING : 31.03.2015 DATE OF PRONOUNCEMENT : 10.04.2015 ORDER PER T.R.SOOD, A.M. THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINS T THE ORDER DATED 17.11.2014 OF CIT(A), CHANDIGARH. 2. IN THIS APPEAL ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 1. THAT THE ORDER OF THE ASSESSING OFFICER AS UPHELD B Y THE COMMISSIONER OF INCOME TAX (APPEALS) CHANDIGARH IS BAD IN LAW AN D IS BEYOND ALL THE CANNONS OF LAW AND JUSTICE. 2. THAT THE ORDER OF THE ASSESSING OFFICER AS UPHELD B Y THE COMMISSIONER OF INCOME TAX (APPEALS) CHANDIGARH ATTRIBUTING EXPE NSES TO THE INCOME WHICH IS ENTITLE TO DEDUCTION U/S 80P(2 )(D) AMOUNTING TO RS. 4,53,11,101/- AGAINST THE GROSS INTEREST INCOME OF RS. 7,16,47,331/- BY APPLYING THE PROVISIONS OF SECTION 14-A READ WITH RULE 8D IS BAD IN LAWAND IS AGAINST THE JUDICIAL DECISIONS INCLUDING THE DECISIONS OF HON'BLE DELHI COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. KRIBHCO 349 ITR PAGE 618 IN THIS BEHALF. 3. THAT THE ORDER OF THE ASSESSING OFFICER AS UPHELD B Y THE COMMISSIONER OF INCOME TAX (APPEALS) CHANDIGARH APPLYING SECTION 14A READ WITH RULE 8D TO THE DEDUCTIONS ADMISSIBLE UNDER CHAPTER VI-A MORE SO WHEN THE SLP FILED IN THE SUPREME COURT OF INDIA BY THE DEPARTMENT HAS BEEN DISMISSED MEANING THEREBY THAT THE SUPREME COURT HA S AFFIRMED THE 2 ORDER OF THE DELHI HIGH COURT REFERRED TO ABOVE. 4. THAT THE ORDER OF THE ASSESSING OFFICER AS UPHELD B Y THE COMMISSIONER OF INCOME TAX (APPEALS) CHANDIGARH NOT ALLOWING DED UCTION U/S 80P(2)(C) AMOUNTING TO RS. 50,000/- IS BAD IN LAW AND NEEDS T O BE ALLOWED. 5. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR DE LETE ANY OF THE GROUNDS OF APPEAL BEFORE THE SAME IS FINALLY HEARD. IT IS THEREFORE HUMBLY PRAYED THAT THE ORDER ALLOCA TING EXPENSES UNDER SECTION 14A READ WITH RULE 8D AMOUNTING TO RS. 4,53,11,101/ - TO THE EARNING OF INTEREST INCOME OF RS. 7,16,47,331/- MAY KINDLY BE SET-ASIDE IN VIE W OF THE FACTS, CIRCUMSTANCES AND JUDICIAL DECISIONS 3. GROUND NO.1 IS OF GENERAL NATURE AND DOES NOT RE QUIRE SEPARATE ADJUDICATION. 4. GROUND NOS. 2 & 3:- AFTER HEARING BOTH THE PARTI ES WE FIND THAT ASSESSEE HAD CLAIMED DEDUCTION U/S 80-P(2)(D) IN RESPECT OF INCOME EARNED FROM MEMBERS OF SOCIETY. WHILE COMPUTING DEDUCTION THE ASSESSEE HAD NOT REDUCED THE EXPENDITURE ATTRIBUTABLE TO EARNING OF SUCH INTERES T. THE ASSESSING OFFICER NOTICED THAT IN THE EARLIER YEARS THIS ISSUE WAS DE CIDED BY THE TRIBUNAL AGAINST THE ASSESSEE FROM ASSESSMENT YEARS 2002-03 TO 2006- 07. FURTHER, THE APPEALS FILED BY THE ASSESSEE BEFORE THE HON'BLE PUNJAB & HARYANA HIGH COURT WERE ALSO DISMISSED, THEREFORE, ASSESSING OFFICER ALLOWE D DEDUCTION ONLY AFTER REDUCING THE EXPENDITURE. 5. ON APPEAL, THE ACTION OF THE ASSESSING OFFICER W AS CONFIRMED BY LD. CIT(A) BECAUSE OF THE ORDER OF THE TRIBUNAL. 6. BEFORE US LD. COUNSEL FOR THE ASSESSEE FAIRLY ADMIT TED THAT THIS ISSUE IS COVERED AGAINST THE ASSESSEE BY THE ORDER OF THE TR IBUNAL IN ITA NO. 869/CHD/2013. HOWEVER, IN THE CASE THE ASSESSING OF FICER HAD ALREADY APPLIED THE RULE 8D AND THE CALCULATION MADE WHILE COMPUTIN G THE DISALLOWANCE U/S 14A WERE NOT CORRECT. 7. ON THE OTHER HAND LD. DR STRONGLY RELIED ON THE ORDER OF THE TRIBUNAL. 3 8. AFTER CONSIDERING THE RIVAL SUBMISSIONS WE FIND THAT IDENTICAL ISSUE WAS ADJUDICATED BY THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO. 869/CHD/2013 IN ASSESSMENT YEAR 2010-11 VIDE PARAS 9 TO 14 WHICH RE ADS AS UNDER:- 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFU LLY AND WE FIND THAT ADMITTEDLY THE ISSUE IS COVERED AGAINST THE AS SESSEE BY THE EARLIER DECISION OF TRIBUNAL WHICH HAS BEEN CONFIRMED BY TH E HONBLE PUNJAB & HARYANA HIGH COURT IN ITA NO. 530 OF 2006 VIDE OR DER DT. 28/03/2011. NOW THE ONLY QUESTION IS WHETHER THIS D ECISION HAS TO BE FOLLOWED OR THE DECISION OF HONBLE DELHI HIGH COUR T IN CASE OF CIT VS. KRIBHCO HAS TO BE FOLLOWED. THE ISSUE REGARDING EFFECT OF DISMISSAL OF SLP WAS CONSIDERED BY THE HONBLE SUPREME COURT IN CASE OF V.M. SALGAOCAR AND BROS. PVT. LTD. VS. CIT, 243 ITR 383 THE COURT POINTED OUT FOLLOWING OBSERVATIONS WHICH IS AS UNDER: 1 . DIFFERENT CONSIDERATIONS APPLY WHEN A SPECIAL LEAV E PETITION UNDER ARTICLE 136 OF THE CONSTITUTION IS SIMPLY DIS MISSED BY SAYING DISMISSED, AND AN APPEAL PROVIDED UNDER ARTICLE 13 3 IS DISMISSED ALSO WITH THE WORDS THE APPEAL IS DISMISSED. IN T HE FORMER CASE IT HAS BEEN LAID DOWN BY THIS COURT THAT WHEN A SPECIA L LEAVE PETITION IS DISMISSED THIS COURT DOES NOT COMMENT ON THE CORREC TNESS OR OTHERWISE OF THE ORDER FROM WHICH LEAVE TO APPEAL I S SOUGHT. BUT WHAT THE COURT MEANS IS THAT IT DOES NOT CONSIDER IT TO BE A FIT CASE FOR EXERCISE OF ITS JURISDICTION UNDER ARTICLE 136 OF T HE CONSTITUTION. THAT CERTAINLY COULD NOT BE SO WHEN AN APPEAL IS DISMISS ED THOUGH BY A NON-SPEAKING ORDER. HERE THE DOCTRINE OF MERGER APP LIES. IN THAT CASE, THE SUPREME COURT UPHOLDS THE DECISION OF THE HIGH COURT OR THE TRIBUNAL FROM WHICH THE APPEAL IS PROVIDED UNDER CL AUSE (3) OF ARTICLE 133. THIS DOCTRINE OF MERGER DOES NOT APPLY IN THE CASE OF DISMISSAL OF A SPECIAL LEAVE PETITION UNDER ARTICLE 136. WHEN AN APPEAL IS DISMISSED THE ORDER OF THE HIGH COURT IS MERGED WIT H THAT OF THE SUPREME COURT. WE QUOTE THE FOLLOWING PARAGRAPH FRO M THE JUDGMENT OF THIS COURT IN THE CASE OF SUPREME COURT EMPLOYEE S WELFARE ASSOCIATION V. UNION OF INDIA, AIR 1990 HON'BLE SUP REME COURT 334; [1989] 4 SCC 187 (AT PAGE 344 OF AIR 1990 S.C): 22. IT HAS BEEN ALREADY NOTICE THAT THE SPECIAL LE AVE PETITION FILED ON BEHALF OF THE UNION OF INDIA AGAINST THE SAID JUDGM ENTS OF THE DELHI HIGH COURT WERE SUMMARILY DISMISSED BY THIS COURT. IT IS NOW A WELL SETTLED PRINCIPLE OF LAW THAT WHEN A SPECIAL LEAVE PETITION IS SUMMARILY DISMISSED UNDER ARTICLE 136 OF THE CONSTITUTION, BY SUCH DISMISSAL THIS COURT DOES NOT LAY DOWN ANY LAW, AS ENVISAGED BY AR TICLE 141 OF THE CONSTITUTION, AS CONTENDED BY THE LEARNED ATTORNEY- GENERAL. IN INDIAN OIL CORPORATION LTD. V. STATE OF BIHAR [1987] 167 I TR 897; [1986] 4 SCC 146; AIR 1986 HON'BLE SUPREME COURT 1780, IT HA S BEEN HELD BY THIS COURT THAT THE DISMISSAL OF A SPECIAL LEAVE PE TITION IN LIMINE BY A NON-SPEAKING ORDER DOES NOT JUSTIFY ANY INFERENCE T HAT, BY NECESSARY IMPLICATION, THE CONTENTIONS RAISED IN THE SPECIAL LEAVE PETITION ON THE MERITS OF THE CASE HAVE BEEN REJECTED BY THE SUPREM E COURT. IT HAS BEEN FURTHER HELD THAT THE EFFECT OF A NON-SPEAKING ORDER OF DISMISSAL OF A SPECIAL LEAVE PETITION WITHOUT ANYTHING MORE I NDICATING THE GROUNDS OR REASONS OF ITS DISMISSAL MUST, BY NECESS ARY IMPLICATION, BE TAKEN TO BE THAT THE SUPREME COURT HAD DECIDED ONLY THAT IT WAS NOT A FIT CASE WHERE SPECIAL LEAVE SHOULD BE GRANTED. IN UNION OF INDIA V. ALL INDIA SERVICES PENSIONERS ASSOCIATION [1988] 2 SCC 580; AIR 1988 HON'BLE SUPREME COURT 501, THIS COURT HAS GIVEN REA SONS FOR DISMISSING THE SPECIAL LEAVE PETITION. WHEN SUCH RE ASONS ARE GIVEN, THE DECISION BECOMES ONE WHICH ATTRACTS ARTICLE 141 OF THE CONSTITUTION WHICH PROVIDES THAT THE LAW DECLARED B Y THE SUPREME COURT SHALL BE BINDING ON ALL THE COURTS WITHIN THE TERRITORY OF INDIA. IT, THEREFORE, FOLLOWS THAT WHEN NO REASON IS GIVEN, BU T A SPECIAL LEAVE PETITION IS DISMISSED SIMPLICITER, IT CANNOT BE SAI D THAT THERE HAS BEEN A DECLARATION OF LAW BY THIS COURT UNDER ARTICLE 14 1 OF THE CONSTITUTION. 4 IT WAS, THEREFORE, CONTENDED THAT ONCE THIS COURT I N CIVIL APPEAL NO. 424 OF 1999, HAS DISMISSED THE APPEAL IT HAS UPHELD THE ORDER OF THE HIGH COURT IN THE CASE OF THE ASSESSMENT YEAR 1980- 81 AND IT CANNOT TAKE A DIFFERENT VIEW FOR THE ASSESSMENT YEAR 1979- 80. THERE APPEARS TO BE SUBSTANCE IN THE SUBMISSION OF THE ASSESSEE. THIS ISSUE WAS AGAIN CONSIDERED BY HONBLE SUPREME COURT IN CASE OF KUNHAYAMMED AND OTHERS VS. STATE OF KERALA AND ANOTHER (SUPRA). IN THAT CASE THIS IS HOW THE QUESTION AROS E : A QUESTION OF FREQUENT RECURRENCE AND OF SOME SIGNI FICANCE INVOLVING THE LEGAL IMPLICATIONS AND THE IMPACT OF AN ORDER REJECTING A PETITION SEEKING GRANT OF SPECIAL LEAVE TO APPEAL UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA HAS ARISEN FOR DECISION IN THIS APPEAL . 10. THE HONBLE COURT DISCUSSED AT PAGE 368 TO 370 THE PROVISIONS OF ARTICLE 132 TO 136 OF THE CONSTITUTION AND NOTED THE PROCEDURE OF DECIDING SPECIAL LEAVE PETITION. THEREAFTER AT PAGE 372 IT WAS OBSERVED AS UNDER : IT IS NOT THE POLICY OF THIS COURT TO ENTERTAIN S PECIAL LEAVE PETITION AND GRANT LEAVE UNDER ARTICLE 136 OF THE C ONSTITUTION SAVE IN THOSE CASES WHERE SOME SUBSTANTIAL QUESTION OF LAW OF GENERAL OR PUBLIC IMPORTANCE IS INVOLVED OR THERE I S MANIFEST INJUSTICE RESULTING FROM THE IMPUGNED ORDER OR JUDG MENT. THE DISMISSAL OF A SPECIAL LEAVE PETITION IN LIMINE BY A NON SPEAKING ORDER DOES NOT, THEREFORE, JUSTIFY ANY INFERENCE TH AT BY NECESSARY IMPLICATION THE CONTENTIONS RAISED IN THE SPECIAL L EAVE PETITION ON THE MERITS OF THE CASE HAVE BEEN REJECTED BY THI S COURT. IT MAY ALSO BE OBSERVED THAT HAVING REGARD TO THE VERY HEAVY BACKLOG OF WORK IN THIS COURT AND THE NECESSITY TO RESTRICT THE INTAKE OF FRESH CASES BY STRICTLY FOLLOWING THE CRI TERIA AFOREMENTIONED, IT HAS VERY OFTEN BEEN THE PRACTICE OF THIS COURT NOT TO GRANT SPECIAL LEAVE EXCEPT IN CASES WHERE TH E PARTY CANNOT CLAIM EFFECTIVE RELIEF BY APPROACHING THE CO NCERNED HIGH COURT UNDER ARTICLE 226 OFTEN DISMISSED ONLY B Y PASSING A NON-SPEAKING ORDER ESPECIALLY IN VIEW OF THE RULING S ALREADY GIVEN BY THIS COURT, IN THE TWO DECISIONS AFORECITED, THA T SUCH DISMISSAL OF THE SPECIAL LEAVE PETITION WILL NOT PRECLUDE THE PARTY FROM MOVING THE HIGH COURT FOR SEEKING RELIEF UNDER ARTI CLE 226 OF THE CONSTITUTION. IN SUCH CASES, IT WOULD WORK EXTREME HARDSHIP AND REFUSE HIM RELIEF UNDER ARTICLE 226 OF THE CONSTITU TION ON THE SOLE GROUND OF DISMISSAL OF THE SPECIAL LEAVE PETITION. IN OUR OPINION, WHAT HAS BEEN STATED BY THIS COURT APPLIES ALSO TO A CASE WHERE A SPECIAL LEAVE PETITION HAVING BEEN D ISMISSED BY A NON-SPEAKING ORDER THE APPLICANT APPROACHES THE H IGH COURT BY MOVING A PETITION FOR REVIEW. MAY BE THAT THE SU PREME COURT WAS NOT INCLINED TO EXERCISE ITS DISCRETIONARY JURI SDICTION UNDER ARTICLE 136 PROBABLY BECAUSE IT FELT THAT IT WAS SA ID SPECIFICALLY IN THE ORDER DISMISSING THE SPECIAL LEAVE PETITION ONE IS LEFT MERELY GUESSING. WE DO NOT THINK IT WOULD BE JUST TO DEPRI VE THE AGGRIEVED PERSON OF THE STATUTORY RIGHT OF SEEKING RELIEF IN REVIEW JURISDICTION OF THE HIGH COURT IF A CASE FOR RELIEF IN THAT JURISDICTION COULD BE MADE OUT MERELY BECAUSE A SPECIAL LEAVE PE TITION UNDER ARTICLE 136 OF THE CONSTITUTION HAD ALREADY S TOOD REJECTED BY THE SUPREME COURT BY A NON-SPEAKING ORDER. 11. THE COURT TOTALLY AGREED WITH THE DECISION OF T WO JUDGES BENCH IN CASE OF V.M. SALGAOCAR AND BROS. PVT. LTD. VS. CIT [2000] 243 ITR 383 WHICH IS AS UNDER : 5 WE MAY REFER TO A RECENT DECISION, BY A TWO-JUDGE BENCH OF THIS COURT IN V.M. SALGAOCAR AND BROS. PVT. LTD. V. CIT[ 2000] 243 ITR 383; [2000]97 FIR 192; [2000] 3 SCALE 240, HOLDING THAT WHEN A SPECIAL LEAVE PETITION IS DISMISSED, THIS COURT DOE S NOT COMMENT ON THE CORRECTNESS OR OTHERWISE OF THE ORDER FROM W HICH LEAVE TO APPEAL IS SOUGHT. WHAT THE COURT MEANS IS THAT IT D OES NOT CONSIDER IT TO BE A FIT CASE FOR EXERCISING ITS JUR ISDICTION UNDER ARTICLE 136 OF THE CONSTITUTION. THAT CERTAINLY COU LD NOT BE SO WHEN APPEAL IS DISMISSED THOUGHT BY A NON-SPEAKING ORDER. HERE THE DOCTRINE OF MERGER APPLIES. IN THAT CASE, THE S UPREME COURT UPHOLDS THE DECISION OF THE HIGH COURT OR OF THE TR IBUNAL. THIS DOCTRINE OF MERGER DOES NOT APPLY IN THE CASE OF DI SMISSAL OF A SPECIAL LEAVE PETITION UNDER ARTICLE 136. WHEN AN A PPEAL IS DISMISSED, THE ORDER OF THE HIGH COURT MERGES WITH THAT OF THE SUPREME COURT. WE FIND OURSELVES IN ENTIRE AGREEMEN T WITH THE LAW SO STATED. WE ARE CLEAR IN OUR MIND THAT AN ORD ER DISMISSING A SPECIAL LEAVE PETITION, MORE SO WHEN IT IS BY A NON -SPEAKING ORDER, DOES NOT RESULT IN MERGER OF THE ORDER IMPUG NED INTO THE ORDER OF THE SUPREME COURT. THE ABOVE VERY CLEARLY SHOWS THAT EVEN IN THE DECIS ION QUOTED BY LD. COUNSEL FOR THE ASSESSEE I.E; KUNHAYAMMED AND O THERS VS. STATE OF KERALA AND ANOTHER(SUPRA) ALSO VERY CLEARLY HOLDS T HAT IF AN SLP IS DISMISSED IN LEMINE THEN IT WOULD BEEN THAT COURT H AS NOT COMMENTED ON THE MERITS OF THE CASE BUT IT HAS MERELY FOUND THE SAME NOT TO BE A FIT CASE FOR HEARING. 12. THE LD. COUNSEL HAS SPECIFICALLY REFERRED TO TH E CONCLUSION REACHED BY THE COURT WHICH ARE AS UNDER: (I) WHERE AN APPEAL OR REVISION IS PROVIDED AGAINST AN ORDER PASSED BY A COURT, TRIBUNAL OR ANY OTHER AUTHORITY BEFORE A SUPERIOR FORUM AND SUCH SUPERIOR FORUM MODIFIES, RE VERSES OR AFFIRMS THE DECISION PUT IN ISSUE BEFORE IT, THE DE CISION BY THE SUBORDINATE FORUM MERGES IN THE DECISION BY THE SUP ERIOR FORUM AND IT IS THE LATTER WHICH SUBSISTS, REMAINS OPERAT IVE AND IS CAPABLE OF ENFORCEMENT IN THE EYE OF LAW. (II) THE JURISDICTION CONFERRED BY ARTICLE 136 OF THE CO NSTITUTION IS DIVISIBLE INTO TWO STAGES. THE FIRST STAGE IS UP TO THE DISPOSAL OF THE PRAYERS FOR SPECIAL LEAVE TO FILE AN APPEAL. TH E SECOND STAGE COMMENCES IF AND WHEN THE LEAVE TO APPEAL IS GRANTE D AND THE SPECIAL LEAVE PETITION IS CONVERTED INTO AN APPEAL. (III) THE DOCTRINE OF MERGER IS NOT A DOCTRINE OF UNIVER SAL OR UNLIMITED APPLICATION. IT WILL DEPEND ON THE NATURE OF JURISDICTION EXERCISED BY THE SUPERIOR FORUM AND THE CONTENT OR SUBJECT MATTER OF CHALLENGE LAID OR CAPABLE OF BEING LAID S HALL BE DETERMINATIVE OF THE APPLICABILITY OF MERGER. THE S UPERIOR JURISDICTION SHOULD BE CAPABLE OF REVERSING, MODIFY ING OR AFFIRMING THE ORDER PUT IN ISSUE BEFORE IT. UNDER A RTICLE 136 OF THE CONSTITUTION, THE SUPREME COURT MAY REVERSE, MODIFY OR AFFIRM THE JUDGMENT DECREE OR ORDER APPEALED AGAINST WHILE EXERCISING ITS APPELLATE JURISDICTION AND NOT WHILE EXERCISING THE DISCRETIONARY JURISDICTION DISPOSING OF A PETITION FOR SPECIAL LEAVE TO APPEAL. THE DOCTRINE OF MERGER CAN, THEREFORE, B E APPLIED TO THE FORMER AND NOT TO THE LATTER. (IV) AN ORDER REFUSING SPECIAL LEAVE TO APPEAL MAY BE A NON- SPEAKING ORDER OR A SPEAKING ONE. IN EITHER CASE IT DOES NOT ATTRACT THE DOCTRINE OF MERGER. AN ORDER REFUSING S PECIAL LEAVE TO APPEAL DOES NOT STAND SUBSTITUTED IN PLACE OF THE O RDER UNDER CHALLENGE. ALL THAT IT MEANS IS THAT THE COURT WAS NOT INCLINED TO EXERCISE ITS DISCRETION SO AS TO ALLOW THE APPEAL B EING FILED. 6 (V) IF THE ORDER REFUSING LEAVE TO APPEAL IS A SPEAKING ORDER, I.E., GIVES REASONS FOR REFUSING THE GRANT OF LEAVE , THEN THE ORDER HAS TWO IMPLICATIONS. FIRSTLY, THE STATEMENT OF LAW CONTAINED IN THE ORDER IS A DECLARATION OF LAW BY THE SUPREME CO URT WITHIN THE MEANING OF ARTICLE 141 OF THE CONSTITUTION. SECONDL Y, OTHER THAN THE DECLARATION OF LAW, WHATEVER IS STATED IN THE O RDER ARE THE FINDINGS RECORDED BY THE SUPREME COURT WHICH WOULD BIND THE PARTIES THERETO AND ALSO THE COURT, TRIBUNAL OR AUT HORITY IN ANY PROCEEDINGS SUBSEQUENT THERETO BY WAY OF JUDICIAL D ISCIPLINE, THE SUPREME COURT BEING THE APEX COURT OF THE COUNTRY. BUT, THIS DOES NOT AMOUNT TO SAYING THAT THE ORDER OF THE COU RT, TRIBUNAL OR AUTHORITY BELOW HAS STOOD MERGED IN THE ORDER OF TH E SUPREME COURT REJECTING THE SPECIAL LEAVE PETITION OR THAT THE ORDER OF THE SUPREME COURT IS THE ONLY ORDER BINDING AS RES JUDI CATA IN SUBSEQUENT PROCEEDINGS BETWEEN THE PARTIES. (VI) ONCE LEAVE TO APPEAL HAS BEEN GRANTED AND THE APPELLATE JURISDICTION OF THE SUPREME COURT HAS BEE N INVOKED THE ORDER PASSED IN APPEAL WOULD ATTRACT THE DOCTRINE O F MERGER; THE ORDER MAY BE REVERSAL, MODIFICATION OR MERELY AFFIR MATION. (VII) ON AN APPEAL HAVING BEEN PREFERRED OR A PETITION SE EKING LEAVE TO APPEAL HAVING BEEN CONVERTED INTO AN APPEA L BEFORE THE SUPREME COURT THE JURISDICTION OF THE HIGH COUR T TO ENTERTAIN A REVIEW PETITION IS LOST THEREAFTER AS PROVIDED BY SUB-RULE(1) OF RULE 1 OF ORDER XLVII OF THE CODE OF CIVIL PROCEDUR E. IN FACT HE HAS INVITED OUR ATTENTION TO CLAUSE (III ) OF THE ABOVE PORTION AND CLAUSE WERE CLEARLY SHOWS THAT THE HONBLE COUR T CAN REVERSE, MODIFY OR AFFIRM THE JUDGMENT DECREE OR ORDER APPEA LED, AGAINST WHILE EXERCISING ITS APPELLATE JURISDICTION IN THAT CASE THE DOCTRINE OF MERGER WOULD APPLY WHILE EXERCISING THE DISCRETIONARY JURI SDICTION IN DISPOSING OF A PETITION FOR SPECIAL LEAVE TO APPEAL. WHEN S UPREME COURT PASSED AN NON SPEAKING ORDER THEN THAT WILL NOT LEAD TO ME RGER. 13. FROM THE ABOVE IT BECOME ABSOLUTELY CLEAR THAT IF THE HONBLE SUPREME COURT WHILE CONSIDERING THE SLP DECIDES AN ISSUE IN LEMINE THEN SUCH ORDER WOULD NOT LEAD TO THE CONCLUSION TH AT THE HONBLE COURT HAS CONSIDERED THE MERITS OF THE CASE AND WOU LD NOT LEAD TO MERGER OF SUCH ORDER WITH THE ORDER OF THE HIGH COU RT. IN THE PRESENT CASE SLP FILED BY THE REVENUE IN CASE OF CIT VS. M/ S KRIBHCO IN INCOME TAX APPEAL NO. 444 OF 2011 THE FOLLOWING ORDER HAS BEEN PASSED: HEARD LEARNED SOLICITOR FOR INDIA DELAY CONDONED. THE SPECIAL LEAVE PETITION IS DISMISSED. THUS IT IS CLEAR THAT THE COURT HAS PASSED AN ORDER IN LEMINE AND DISMISSED THE SLP WHICH CANNOT LEAD TO THE CONCLUSI ON THAT THIS ORDER HAS MERGED WITH THE ORDER OF DELHI HIGH COURT. THER EFORE, WHEN AN ORDER OF THE JURISDICTIONAL HIGH COURT IS AVAILABLE IN THE CASE OF ASSESSEE WE HAVE NO OPTION BUT TO FOLLOW THE SAME. THEREFORE FOLLOWING THE ORDER OF THE HONBLE HIGH COURT IN ITA NO. 444 OF 2011 AND WE DECIDE THIS ISSUE AGAINST THE ASSESSEE. IT WAS ALSO CONTENDED THAT IN ANY CASE RULE 8D HAS BECOME APPLICABLE FROM ASSESSMENT YEAR 2008-09 AND THEREFORE FOR COMPUTING THE DISALLOWANCE UNDER RULE 8D READ WITH SECTION 14-A, DISALLOWANCE SHOULD BE CALCULATED AS PER THIS RULE. 14. WE FIND MERIT IN THIS CONTENTION AND THEREFORE SET ASIDE THE ORDER OF LD. CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF AO FOR RE- COMPUTING THE DISALLOWANCE U/S 14-A READ WITH RULE 8P(2)(D). 7 9. FOLLOWING THE ABOVE ORDER, WE DECIDE THIS ISSUE PRINCIPALLY AGAINST THE ASSESSEE. HOWEVER, THE ASSESSING OFFICER SHOULD RE- COMPUTE THE DISALLOWANCE AFTER VERIFYING THE CALCULATION OF DISALLOWANCE U/S 14A READ WITH RULE 8D AFTER VERIFICATION OF THE FIGURES SUBMITTED BY THE ASSESS EE. 10. GROUND NO.4 : AFTER HEARING BOTH THE PARTIES WE FIND THAT ASSESSEE HAD CLAIMED DEDUCTION U/S 80P(2)(C)FOR RS. 50,000/-. TH IS DEDUCTION WAS DENIED BY THE ASSESSING OFFICER BECAUSE THE SAME WAS ALLOWABL E TO THE COOPERATIVE SOCIETY ENGAGED IN THE ACTIVITIES OF OTHER THAN MARKETING O F AGRICULTURAL PRODUCE OF MEMBERS, PURCHASE OF AGRICULTURE IMPLEMENTS ETC, CO TTAGE INDUSTRIES AND ENGAGED IN BUSINESS OF BANKING OR A FEDERAL COOPERA TIVE SOCIETY ENGAGED IN SUPPLYING MILK, OIL SEEDS, FRUITS AND VEGETABLES. T HE ACTIVITIES CARRIED OUT BY THE ASSESSEE SOCIETY ARE WITHIN THE AFOREMENTIONED ACTI VITIES AND, THEREFORE, THEN DEDUCTION WAS NOT ALLOWABLE. 11. THE ACTION OF THE ASSESSING OFFICER WAS CONFIRM ED BY LD. CIT(A). 12. BOTH THE PARTIES WERE HEARD. 13. AFTER CONSIDERING THE RIVAL SUBMISSIONS WE FIND THAT THOUGH SOME SUNMISSIONS HAVE BEEN MADE BUT NO EVIDENCE WAS BRO UGHT BEFORE US TO SHOW THAT ACTIVITIES OF THE SOCIETY WAS NOT WITHIN THE ACTIVITIES MENTIONED IN SECTION 80P(2)(A) & (B), THEREFORE, WE FIND NOTHING WRONG W ITH THE ORDER OF LD. CIT(A) AND CONFIRM THE SAME. 14. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 10.04.2015 SD/- SD/- (BHAVNESH SAINI) (T.R. SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 10 TH APRIL, 2015 RKK COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT, TH E CIT(A), THE DR 8