Ita v. Ita

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE WEDNESDAY, THE 27TH DAY OF NOVEMBER 2013/6TH AGRAHAYANA, 1935 ITA.No. 294 of 2013 () -------------------------------- (AGAINST THE ORDER OF THE APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN, DATED 16.08.2013 IN ITA No.239/COCH/2013 OF THE ASSESSMENT YEAR 2008 -09) APPELLANT/APPELLANT/ASSESSEE : ----------------------------------------------------- M/S MUTHOOT FINCORP LTD., MUTHOOT CENTRE, PUNNEN ROAD, STATUE, THIRUVANANTHAPURAM-695 034 - REPRESENTED BY SHRI.THOMAS JOHN, CHAIRMAN-CUM-MANAGING DIRECTOR. BY SENIOR ADVOCATE SRI.T.M.SREEDHARAN ADVS. SRI.V.P.NARAYANAN SMT.BOBY M.SEKHAR SMT.DIVYA RAVINDRAN RESPONDENT/RESPONDENT/REVENUE : --------------------------------------------------------- THE COMMISSIONER OF INCOME TAX, AAYAKAR BHAVAN, KAWADIAR, THIRUVANANTHAPURAM. BY SRI. JOSE JOSEPH, S.C, FOR INCOME TAX THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON 27-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sv ITA.No. 294 of 2013 () ------------------------------ APPENDIX ---------------- PETITIONER'S ANNEXURES :---------------------------------------- ANNEXURE-A.TRUE COPY OF THE ASSESSMENT ORDER ALONG WITH DEMAND NOTICE DATED 24.12.2010 PASSED BY THE JOINT COMMISSIONER OF INCOME TAX, THIRUVANANTHAPURAM.ANNEXURE-B.TRUE COPY OF NOTICE C. No.412/J/R-26/2012-13 DATED 12.03.2013 ISSUED BY THE RESPONDENT. ANNEXURE-C.TRUE COPY OF THE OBJECTIONS AND REPLY DATED 18.03.2013 SENT BY THE APPELLANT TO THE RESPONDENT. ANNEXURE-D.TRUE COPY OF THE ORDER DATED 28.03.2013 IN C.NO.413/J/R-26/2012-13 ISSUED BY THE RESPONDENT. ANNEXURE-E.TRUE COPY OF THE GROUNDS OF APPEAL FILED BY THE APPELLANT BEFORE THE COMMISSIONER OF INCOME TAX(APPLEAS), THIRUVANANTHAPURAM. ANNEXURE-F.CERTIFIED COPY OF THE APPELLATE ORDER IN I.T.A.No.239/COCH/2013 DATED 16.08.2013 ISSUED BY ITAT, COCHIN BENCH. ANNEXURE-G.TRUE COPY OF THE INTIMATION FOR RETURN OF INCOME DATED 22.03.2010 GIVEN BY THE ASSESSING OFFICER. RESPONDENT(S) ANNEXURES : NIL --------------------------------------------- // TRUE COPY // P.S. TO JUDGE. Manjula Chellur, C.J. & A.M. Shaffique, J.- - - - - - - - - - - - - - - - - - - - - - - - - - - - I.T.A. No. 294 OF 2013 - - - - - - - - - - - - - - - - - - - - - - - - - - - -Dated this the 27[th] day of November, 2013 Manjula Chellur, C.J. JUDGMENT The appellant was the assessee who is before us aggrieved by the orders of the Income Tax Appellate Tribunal,Cochin Bench in ITA No.239 of 2013 for the assessment year2008-09. 2. According to the appellant, the order passed by the Commissioner of Income Tax, vide Annexure D, invokingpowers under Section 263 of the Act is illegal and withoutjurisdiction. The revisional authority while considering thematter did not accept the stand of the assessee that thereimbursement of expenses by the assessee to M/s.MuthootPappachan Consultancy and Management Services(MPCMS)was covered under Section 194(c) of the Act as the paymentwas towards a contract. Revisional authority opined thatsince no TDS was made, the claim would have beendisallowable under Section 40(a)(ia) of the Act. ITA No. 294 of 2013 aggrieved by the orders of the Income Tax Appellate Tribunal,Cochin Bench in ITA No.239 of 2013 for the assessment year2008-09. 2. According to the appellant, the order passed by the Commissioner of Income Tax, vide Annexure D, invokingpowers under Section 263 of the Act is illegal and withoutjurisdiction. The revisional authority while considering thematter did not accept the stand of the assessee that thereimbursement of expenses by the assessee to M/s.MuthootPappachan Consultancy and Management Services(MPCMS)was covered under Section 194(c) of the Act as the paymentwas towards a contract. Revisional authority opined thatsince no TDS was made, the claim would have beendisallowable under Section 40(a)(ia) of the Act. ITA No. 294 of 2013 3. Aggrieved by the said opinion of the revisionalauthority, assessee went before the appellate Tribunal and theTribunal after referring to the total claim made by theassessee under the head “administrative charges”, noted thatthe assessee had deducted tax at source(TDS) only in respectof `2 Crores out of total aggregate amount of `10.53 Croresand the balance amount of `8.53 Crores was not the subjectmatter, according to the assessee, for TDS. Tribunal, afterreferring to the powers of the revisional authority especially inthe light of decisions of the Apex Court in Commissioner ofIncome Tax v. Toyoto Motor Corporation[306 ITR 52]opined that if the order is passed without application of mind,it would also fall under the category of prejudicial to theinterest of revenue, therefore, it opined that the matterrequires to be re-examined by the assessing officer withreference to the applicability of TDS provision under Section40(a)(ia) in respect of `8.53 Crores. Aggrieved by the same,the assessee is before us. ITA No. 294 of 2013 4. Learned counsel appearing for the appellantassessee strenuously contends that the Tribunal has alreadyconfirmed the opinion that the amount of `8.53 Crores is notin respect of contract but reimbursement. Therefore there isno purpose in remanding the matter, if Tribunal has expressedsuch opinion on `8.53 Crores, which may pursuade on theassessing officer while reconsidering the matter. 5. The entire issue revolves round the fact that whether this amount of `8.53 Crores is in respect of amountsreimbursed to M/s. MPCMS on contract as alleged by theassessee or otherwise. While considering the matter afresh bythe assessing officer, the exercise he has to do is to take intoconsideration the provisions under Income Tax Act pertainingto the tax deducted at source, whether it is with reference toSection 40(a)(ia) or other provisions. Therefore, the exerciseto be undertaken by the assessing officer as indicated by theTribunal is to be untrammelled by any of the opinionsexpressed by the Commissioner which is confirmed by the ITA No. 294 of 2013 -:4:- Tribunal. In other words, by application of mindindependently to the facts of the case with reference to theprovisions of TDS under the Act, assessing officer has toproceed further. The appeal is disposed of as above. Manjula Chellur, Chief Justice. A.M. Shaffique, Judge. ttb/27/11