Assessments v. Union Of India [2011 (265) E.l.t. 11 (Sc

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN THE HONOURABLE MR. JUSTICE ASHOK MENON THURSDAY, THE 26TH DAY OF JULY 2018 / 4TH SRAVANA, 1940 ITA.No. 14 of 2013 AGAINST THE ORDER IN ITA 988/2008 of INCOME TAX APPELLATE TRIBUNAL,COCHINBENCH DATED 17-04-2012 APPELLANT(S)/APPELLANT: THE COMMISSIONER OF INCOME TAX, COCHIN. BY SRI.JOSE JOSEPH, SC RESPONDENT(S)/RESPONDENT: SHRI EUROPINI GIOVANI,FOREIGN TECHNICIAN, REP. BY FACT LTD., UDYOGAMANDAL,KOCHI-683 501. R1 BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATHSRI.P.BENNY THOMASSRI.K.JOHN MATHAISRI.JOSON MANAVALANSRI.KURYAN THOMAS THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 26-07-2018, ALONG WITH I.T.A. NO.24/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ALONG WITH I.T.A. NO.24/2013, THE COURT ON THE SAME DAY DELIVERED RVS. APPENDIX PETITIONER(S)' ANNEXURES: RESPONDENT(S)' ANNEXURES: NIL. /TRUE COPY/ P.S. TO JUDGE RVS.10/08/2018 K. VINOD CHANDRAN & ASHOK MENON, JJ. ---------------------------------------I.T.A. Nos.14 & 24 of 2013 --------------------------------------- Dated this the 26[th] day of July, 2018 JUDGMENT K. Vinod Chandran, J. The appeals are against the Tribunal orderrefusing to condone the delay in filing the appeal.The facts arising are slightly peculiar in natureand the same are relevant. The respondents hereinwere foreign technicians, who were in theemployment of Fertilizers and Chemicals TravancoreLimited , a public sector undertaking. Thesalary paid to them by the FACT was taxed as incomeat the hands of the foreign technicians. Statutoryappeals were resorted to by the assessees andeventually this Court found that the same can only be treated as income from other sources. On thebasis of the judgment of this Court, the assessmentwas redone, which necessitated a huge refund. Therefund was of more than Rs.50,00,000/- in the caseof one assessee and more than Rs.1,66,00,000/- inthe case of the other. Refunds were made to FACTsince the tax liability was satisfied by FACT. 2. On the interest income obtained on suchrefund being made by the Department, a substantiveassessment was made on the foreign technicians anda protective assessment on FACT. In first appeal,the protective assessment against FACT wassustained, but the substantive assessment madeagainst the foreign technicians were set aside. Therevenue, very strangely filed an appeal from theprotective assessments being sustained. No appealwas filed from the order cancelling the substantive assessments. 3. With respect to the protective assessment,the Tribunal directed the Department to approachthe Committee on Disputes [for brevity, the COD]and then, if necessary approach the Tribunal. Theappeals were closed with such direction, reservingliberty to revive the same if required on theorders of the COD. Though initially theCommissioner had directed the proceedings to beinitiated before the COD, later the same wasdirected to be dropped. The appeals before theTribunal were also not sought to be revived andthat remedy was abandoned. Pertinent also is thefact that COD itself was set at naught, finding thesame to be not an effective measure by the Hon'bleSupreme Court in Electronics Corporation of IndiaLtd. v. Union of India [2011 (265) E.L.T. 11 (SC)]. 3. With respect to the protective assessment,the Tribunal directed the Department to approachthe Committee on Disputes [for brevity, the COD]and then, if necessary approach the Tribunal. Theappeals were closed with such direction, reservingliberty to revive the same if required on theorders of the COD. Though initially theCommissioner had directed the proceedings to beinitiated before the COD, later the same wasdirected to be dropped. The appeals before theTribunal were also not sought to be revived andthat remedy was abandoned. Pertinent also is thefact that COD itself was set at naught, finding thesame to be not an effective measure by the Hon'bleSupreme Court in Electronics Corporation of IndiaLtd. v. Union of India [2011 (265) E.L.T. 11 (SC)]. 4. An appeal was filed from the cancellation ofsubstantive assessment in the year 2008 against thetwo respondents herein. The appeals filed againstthe cancellation of substantive assessments weredismissed by the Tribunal on 17.04.2012, finding noreason for the delay and the explanation to beunsatisfactory. The learned Standing Counsel forGovernment of India [Taxes] placed before us anorder of the Hon'ble Supreme Court in Commissionerof Income Tax v. West Bengal InfrastructureDevelopment Finance Corporation Ltd. [(2011) 334ITR 269 (SC)], in which the Hon'ble Supreme Courthad requested the High Court to consider the issueon merits, despite a delay, when there are hugestakes involved. What is to be noticed in thepresent case is that the protective assessment asagainst the FACT survives even now and the demand I.T.A. Nos.14 & 24 of 2013 could be made against the said assessee. In suchcircumstances, there could be found no stakesinvolved in the appeal before the Tribunal, sincethe revenue could have as well satisfied the demandfrom the assessee Company. In such circumstances,we do not think any question of law arises from theorder of the Tribunal and hence we reject theappeals. Sd/- K. VINOD CHANDRAN, JUDGE. Sd/- ASHOK MENON, JUDGE. //True Copy// sp/27/07/18 P.A. To Judge