Date Of Judgment 21-06-2018, Ita Nos.401 & 429-431 Of 2016 Bangalore International Airport Ltd v. The Income Tax Officer [International Taxation

IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 21 DAY OF JUNE 2018 PRESENT THR HON’BLEK DR.JUSTICE VINBBT KOTHARI ANT) THR HON’BLE MRS.JUSTICEK S.SUJATHA ;I.T.A. Nos.401/2016 & 4294431/201 BETWEEN : BANGALORE INTKBRNATIONALAIRPORT LITD., PRESENTLY ATADMINISTRATION BUILDINGALPHA —- 2, DEVANAHALLI-5600300PAN: AABCB8973DREPRESHNIED HEREIN BYITS AUTHORISED REPRESENTATIVEMr. AKSHAY RAM APTE. | _. APPELLANT (BY SRI VIVEK HOLLA, ADV.) AND : THE INCOME TAX OFFICKBRHIINTERNATIONAL TAXATION]WARD 19}1|], BANGALOREPRESENTLY AT:BMTC BUILDING, 80 Ft. ROADKORAMANGALA>BANGALORE -560095. _. RESPONDENT. (BY SRI K.V.ARAVIND, ADV.) THERESE INCOMB TAX APPEALS FILING UNDER SKCTIO260-A OF INCOME TAX ACT 1961, ARISING OUT OF ORDER|DATEHR30.03.2016, PASSED|IN|ITA|Nos .536TO939/BANG/2006, FOR THE ASSESSMENT YEAR 2006-2007,PRAYING TO, a] DECIDE THE FOREGOING QUESTION OF LAW, Date of Judgment 21-06-2018, ITA Nos.401 & 429-431 of 2016 Bangalore International Airport Ltd., Vs. The Income Tax Officer [International Taxation] 2/8 AND OR SUCH OTHBR OF LAW AS MAY BR FORMULATEBED BTHIS HON’BLE COURT AS IT DEEM FIT. B}. SET ASIDE THE.ORDER DATED 30.03.2016 PASSED BY THE ITAT, BENGALURUBENCH,*B’’IN|L.TlITIANos.536.TO|939/BANG/2006JASSESSMENT YEAR 2006-07} AND TO GRANT SUCH OTHER,RBELIBF AS THIS HON’BLEB COURT DEEBEMS FIT IN THE INTBROF JUSTICE. THESE APPEALS COMING ON FOR ADMISSION, THIS|DAY,Dr. VINEET KOTHARI, J., DELIVERED THE FOLLOWING: JU DBGMEN Ti Mr. Vivek Holla,Adv. for Appellant —|AssesseeMr. K.V.Aravind,Adv. for Respondent —Revenue The Assessee has filed these appeals against theOrder passed by the Income Tax Appellate Tribunal on 00.03.2016inI.T.A. Nos.536-539/Bang/2006forAssessment Year 2006-07, holding that the Orderpassed by the Assessing Authority u/s. 1995/2] of theIncome Tax Act, 1961 |'Act' for short] does not fallwithin the category of appealable orders as per theprovisions of Section 246 & 246A of the Act before thelearned Commissioner of Income Tax |Appeals|. Holdingso, the learned Tribunal quashed the Order passed bythe learned Commissioner of Income Tax |Appeals| and Date of Judgment 21-06-2018, ITA Nos.401 & 429-431 of 2016 Bangalore International Airport Ltd., Vs. The Income Tax Officer [International Taxation] 3/8 dismissed the Appeal filed by the Assessee before theTribunal itselt. The relevant Paragraph-12 of the Orderof the learned Tribunal is quoted below for readyreference: “12. The order passed under Section1195/2]does not fall in the category ofappealable orders as per the provisionsof Section 246 & 246A of the Act,therefore, the remedy against the orderpassed under Section 195(2) does not liebefore the appellate authorities by filingthe appeal. Since the CIT [Appeals] hasno jurisdiction to entertainand decide theappeal against the order passed under|section 195/2/, therefore, the order passed by|the CIT [Appeals] without having Jurisdiction|over the subject is not sustainable. Even tfthe order passed by the CIT [Appeals/ ts notsustainable for want of jurisdiction it wouldnot effect the enforceability of the _ ordepassed under Section 195/2/ by the AssessingOfficer.ThelearnedAuthorisedRepresentative of the assessee has placed Date of Judgment 21-06-2018, ITA Nos.401 & 429-431 of 2016 Bangalore International Airport Ltd., Vs. The Income Tax Officer [International Taxation] 4/8 Date of Judgment 21-06-2018, ITA Nos.401 & 429-431 of 2016 Bangalore International Airport Ltd., Vs. The Income Tax Officer [International Taxation] 4/8 reliance on the decision of the Special Bench|of the Tribunal in the case of Mahindra &|Mahindra [supra], however, we find that theissue before the Special bench was_ notregarding the validity or maintainability of the|appeal but it was only in respect of the|limitation period for passing the order under|section 201 & 201A of the Act. The Special|Bench in the said case drawn the analogy ofthe reasonable time limit for passing the order|under Section 201 & 201A of the Act by|considering the time specified in the Act in|respect of the assessment or re-assessment in|the case of recipient. Therefore, the said|decision is not at all relevant or applicable on|this point.When the appeal against theimpugned order under Section 195(2) ofthe Act is not maintainable for want ofjurisdiction as well as for want of theprovision of the remedy in appeal, thenthe appeal filed by the assessee beforetheTribunal wouldnotSUrVIVE.Accordingly, when the assessee cannot seeka remedy through appellate process, the|present appeals of the assessee cannot be. Date of Judgment 21-06-2018, ITA Nos.401 & 429-431 of 2016 Bangalore International Airport Ltd., Vs. The Income Tax Officer [International Taxation] 5/8 entertained for lack ofJurisdiction of the CIT/Appeals/ as well as of this Tribunal. Hence.the appeals filed by the assessee deserve|dismissal. We make’it clearthat(Oconsiderable time has lapsed in pursuing the|wrong remedy by the assessee without any|objection up till this stage, therefore the|assessee may pursue the appropriate remedy|as per law against the impugned order'passed under Section 195/2/ of the Act. Since.we have dismissed the appeals of theassessee on legal issue, therefore we do not|propose to go into the merits of the issue inthese appeals and the same are left open. 1S.In the result, the appeals of the|assessee are dismissed.” a2Learned Counsel for the Revenue fairlysubmitted that the provisions of Section 248 of the Actwhich separately provides for an appeal by a persondenying the liability to deduct tax at source in certaincases is appealable before the learned Commissioner|Appeals|, was not brought to the notice of the learned Date of Judgment 21-06-2018, ITA Nos.401 & 429-431 of 2016 Bangalore International Airport Ltd., Vs. The Income Tax Officer [International Taxation] 6/8 Tribunal and therefore the Tribunal has fallen into error|of holding that said appeal before the Commissioner ofIncome Tax [Appeals] was not maintainable u/s. 246,AQ46A of the Act. | 3.The provisions of Section 248 of the Act|before and after its amendment with effect from|1.6.2007 by Finance Act, 2017 are quoted below forready reference:| Before Amendment: éI2A8.Appeal by a person denyingliability to deduct tax — Any person having in accordance with theprovisions of sections 195 and 200 deductedand paid tax in respect of any sum|chargeable under this Act, other than interest,who denies his liability to make _ sucdeduction, may appeal to the Commuissioner/Appeals/ to be declared not liable to make.such deduction. Date of Judgment 21-06-2018, ITA Nos.401 & 429-431 of 2016 Bangalore International Airport Ltd., Vs. The Income Tax Officer [International Taxation] 7/8 After Amendment: 4IA8.Appeal by a person denyingliability to deduct tax in certain cases —- WhereunderanagreementOrother|arrangement, the tax deductible on any|income, other than interest, under section 195)is to be borne by the person by whom the|income is payable, and such person having|paid such tax to the credit of the CentralGovernment, claims that no tax was required|to be deducted on such income, he may|appeal to the Commissioner [Appeals] for a|declaration that no tax was deductible onssuch income.” Date of Judgment 21-06-2018, ITA Nos.401 & 429-431 of 2016 Bangalore International Airport Ltd., Vs. The Income Tax Officer [International Taxation] 7/8 After Amendment: 4IA8.Appeal by a person denyingliability to deduct tax in certain cases —- WhereunderanagreementOrother|arrangement, the tax deductible on any|income, other than interest, under section 195)is to be borne by the person by whom the|income is payable, and such person having|paid such tax to the credit of the CentralGovernment, claims that no tax was required|to be deducted on such income, he may|appeal to the Commissioner [Appeals] for a|declaration that no tax was deductible onssuch income.” 4From a bare perusal of the Order passed bythe learned Tribunal, we are of the opinion that theaforesaid provisions of Section 248 of the Act having avital bearing on the issue raised before the learnedTribunal has not been noticed by the learned Tribunaland therefore the Order passed by the learned Tribunalsuffers from infirmity and is per incurium and the samedeserves to be set aside and the matter remanded back| Date of Judgment 21-06-2018, ITA Nos.401 & 429-431 of 2016 Bangalore International Airport Ltd., Vs. The Income Tax Officer [International Taxation] 8/8 to the learned Tribunal to reconsider the said case in|view of the aforesaid quoted provision of Section 248 ofthe Act. The Appeals of the Assessee are allowed. The matter is remitted back to the learned Tribunal for!deciding the Appeal afresh in accordance with law. No.order as to costs. AN /- Sd/-.JU DGE Sd/-.JU DGE