Ita v. The Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAMPRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE BASANT BALAJI FRIDAY, THE 18 DAY OF MARCH 2022/27TH PHALGUNA, 1943 I.T.A. NO.23 OF 2020 (AGAINST THE ORDER DATED 13.08.2018 IN ITA 68/COCH/2017 OF I.T.A.TRIBUNAL, COCHIN BENCH) APPELLANT/APPELLANT/ASSESSEE: M/S.TRANS ASIAN SHIPPING SERVICES PVT. LTD., TRANS ASIA CORPORATE PARK, XIV/396-C, SEAPORT-AIRPORT ROAD, CHETTETHUKARA, KAKKANAD, COCHIN-682 037, REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE MR.WILSON THOMAS. REPRESENTED BY ITS AUTHORIZED BY ADVS.SRI.A.KUMARSRI.P.J.ANILKUMARSMT.G.MINI(1748)SRI.P.S.SREEPRASADSRI.JOB ABRAHAMSRI.AJAY V.ANAND RESPONDENT/RESPONDENT/REVENUE: THE COMMISSIONER OF INCOME TAX,COCHIN-682 018.BY ADVS.SRI.P.K.RAVINDRANATHA MENON (SR.)SRI.JOSE JOSEPH, SC, FOR INCOME TAX C.R.BUILDING, I.S.PRESS ROAD, THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON 18.03.2022, ALONG WITH ITA.25/2020, THE COURT ON THE SAMEDAY DELIVERED THE FOLLOWING: IN THE HIGH COURT OF KERALA AT ERNAKULAMPRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE BASANT BALAJI FRIDAY, THE 18 DAY OF MARCH 2022 27TH PHALGUNA, 1943 I.T.A. NO.25 OF 2020 (AGAINST THE ORDER DATED 13.08.2018 IN ITA 69/COCH/2017 OF I.T.A.TRIBUNAL, COCHIN BENCH) APPELLANT/APPELLANT/ASSESSEE: M/S.TRANS ASIAN SHIPPING SERVICES PVT. LTD., TRANS ASIA, CORPORATE PARK, XIV/396-C, SEAPORT-AIRPORT ROAD, CHETTETHUKARA, KAKKANAD, COCHIN 682 037REPRESENTATIVE MR. WILSON THOMAS.BY ADVS.SRI.A.KUMARSRI.P.J.ANILKUMARSMT.G.MINI(1748)SRI.P.S.SREEPRASADSRI.JOB ABRAHAMSRI.AJAY V.ANAND REPRESENTED BY ITS AUTHORIZED RESPONDENT/RESPONDENT/REVENUE: THE COMMISSIONER OF INCOME TAX,COCHIN 682 018.BY ADVS.SRI.P.K.RAVINDRANATHA MENON (SR.)SRI.JOSE JOSEPH, SC, FOR INCOME TAX C.R BUILDING, I.S PRESS ROAD, THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON18.03.2022, ALONG WITH ITA.23/2020, THE COURT ON THE SAMEDAY DELIVERED THE FOLLOWING: JUDGMENT ------------------(Dated: 18[th] March, 2022) S.V.BHATTI, J. The appeals are filed assailing the order dated13.08.2018. The order under appeal set aside andreversed, the view taken by the Commissioner of IncomeTax (Appeals) and remitted the matter to the assessingauthority for assessment afresh. A series of contentionshave been stated before us by juxtaposing all the threeorders relating to the respective assessment years.Pointed out briefly, the complaint in fact against theorder of the assessing authority is that no consistencyin application of any principle and its findings sufferfrom patent contradictions. Point relied on from theorder of the Commissioner of Income Tax (Appeals) isthat, given the nature of assessee's business and thedetails which are placed in support of T.D.S. claimed,the Commissioner who has power under the Act examined each one of the circumstances, recorded findings infavour of the assessee, relegated the matter to theassessing authority for carrying out a few of thedirections stated therein. The serious ground urgedagainst the order of the Tribunal is that, the order ofthe Tribunal suffers from too much of brevity and everyobjection pointed out by the Department is accepted inone sentence, open remand is made to the assessingofficer. 2.It is in this background, Mr.A.Kumar contendsthat, the assessee not only filed the return for thesubject years and also placed the Annexures in supportof its claim. To the extent of collection and submittingthe details before the authorities, the said burden hasbeen discharged in accordance with law. The assesseecannot be expected to verify the details from the dataof department in different circles, quoted in his words,'the Tribunal or Appellate Authority is asking forperformance of impossible acts'. The point arguedagainst the order of the Tribunal is that, the Tribunal 2.It is in this background, Mr.A.Kumar contendsthat, the assessee not only filed the return for thesubject years and also placed the Annexures in supportof its claim. To the extent of collection and submittingthe details before the authorities, the said burden hasbeen discharged in accordance with law. The assesseecannot be expected to verify the details from the dataof department in different circles, quoted in his words,'the Tribunal or Appellate Authority is asking forperformance of impossible acts'. The point arguedagainst the order of the Tribunal is that, the Tribunal even for a limited purpose did not take up any one ofthe contentions, examined it, recorded a finding thatthis finding is unavailable. On the contrary, a findingon those lines is recorded by the Commissioner and whilesetting aside the finding of the Appellate Authority.Under those circumstances, the assessee appreciates openremand. But in the case on hand, what has been done bythe assessee is in line with the requirements of law andthe trade practice. Without verifying the details attheir end, the documents relied on by the assessee areoverlooked or disbelieved. Therefore, it is argued that,the remand by the Tribunal is unsustainable. 3.The learned standing counsel, Mr.Jose Josephdoes not get into the details of the order of theCommissioner or the Tribunal. His answer to all theobjections taken for the assessee is that, theCommissioner did not comply with the requirements ofRule 46(A) of the Income Tax Rules. In effect, thefindings against the assessment order are recorded byrelying on the documents placed before the Commissioner. Remand ordered by the Tribunal does not cause prejudiceto the assessee. The assessee could prove from thedocuments already placed before the Commissioner may beat the cost of repetition. The same exercise isundertaken before the primary authority in support ofthe claim of the dealer on TDS. He invites our attentionto Annexure-H order and argues that, the scope of theappeal is whether remand is warranted to the primaryauthority or not? In the case on hand, the primaryauthority upon remand, issued notice to the assessee andin the manner the authority has understood, made theassessment order marked as Annexure-H. Interference withthe order of the Tribunal cannot in any way upset thelegal effect of Annexure-H order, Annexure-H order hasto be independently challenged by filing an appeal. Welook at the dates, namely, Annexure-H order dated27.12.2019, the date of filing of the appeal before thiscourt challenging the order of remand is 04.02.2020.After taking note of the rival contentions andappreciating the jurisdictional limitation, the subject ITA Nos.23 & 25 OF 2020 matter of the appeals, in view of the assessment orderin Annexure-H, we are satisfied that, the assessee couldbe relegated to working out the remedy against Annexure-H order by filing an appeal before the Commissioner ofIncome Tax (Appeals) by enclosing a copy of thisjudgment, within two months from the receipt of copy ofthis judgment. All the issues raised in the appeal areexamined on their merits and appeal disposed ofexpeditiously preferably within six months. Pendingappeal, particularly having regard to the nature ofcontroversy being agitated by the assessee, we arepersuaded to grant stay of recovery of tax pursuant toAnnexure-H dated 27.12.2019. Keeping in perspective the arguments of Mr.A. Kumar,we observe that the assessee files the return withAnnexure in the manner stipulated by the Act and theRules, claims TDS adjustment, thereafter, it is for thedepartment to verify the Annexures/details availablewith them or call for inputs from other office as thecase may be. The powers of the Commissioner are co- Keeping in perspective the arguments of Mr.A. Kumar,we observe that the assessee files the return withAnnexure in the manner stipulated by the Act and theRules, claims TDS adjustment, thereafter, it is for thedepartment to verify the Annexures/details availablewith them or call for inputs from other office as thecase may be. The powers of the Commissioner are co- extensive with the powers of the assessing authority. Inthe peculiar circumstances of this case, we arecompelled to observe that the Commissioner, canindependently examine the material now relied on by theassessee to decide the appeal or call for report fromthe jurisdictional assessing authority on the materialrelied on by the assessee and decide the issues. Theassessee as well as the primary authority are affordedopportunity, appeal heard and disposed of as indicatedabove. Sd/- S.V.BHATTI, JUDGE ss Sd/-BASANT BALAJI, JUDGE APPENDIX OF ITA 23/2020 PETITIONER ANNEXURES ANNEXURE A TRUE COPY OF THE ASSESSMENT ORDER FORTHE ASSESSMENT YEAR 2012-13 DATED31.03.2016. ANNEXURE B COPY OF THE RECONCILIATION FILED BEFORETHE ASSESSING AUTHORITY. ANNEXURE C TRUE COPY OF THE MEMORANDUM OF APPEALFILED BEFORE THE CIT(APPEALS). ANNEXURE D TRUE COPY OF THE ORDER OF CIT (APPEALS)DATED 16.12.9016. ANNEXURE E TRUE COPY OF THE MEMORANDUM OF APPEALFILED BY THE REVENUE BEFORE THE INCOMETAX APPELLATE TRIBUNAL. ANNEXURE F COPY OF THE SUBMISSIONS ON THECONTENTIONS IN THE APPEAL (WITHOUTANNEXED DOCUMENTS RELEVANT PAGES 1-10 &91-101). ANNEXURE G TRUE COPY OF THE ORDER OF THE INCOME TAXAPPELLATE TRIBUNAL DATED 13.08.2018.TRUE COPY OF THE ASSESSMENT ORDER DATED27.12.2019. ANNEXURE H PETITIONER ANNEXURES ANNEXURE A TRUE COPY OF THE ASSESSMENT ORDER FORTHE ASSESSMENT YEAR 2013-14 DATED 31-03-2016 ANNEXURE B COPY OF THE RECONCILIATION FILED BEFORETHE ASSESSING AUTHORITY FIRST 2 PAGESAND LAST 2 PAGES. ANNEXURE CTRUE COPY OF THE MEMORANDUM OF APPEALFILED BEFORE THE CIT (APPEALS)ANNEXURE DTRUE COPY OF THE ORDER OF CIT (APPEALS)DATED 16/12/2016ANNEXURE ETRUE COPY OF THE MEMORANDUM OF APPEAL TRUE COPY OF THE MEMORANDUM OF APPEALFILED BY THE REVENUE BEFORE THE INCOMETAX APPELLATE TRIBUNAL ANNEXURE F COPY OF THE SUBMISSIONS ON THECONTENTIONS IN THE APPEAL (WITHOUTANNEXED DOCUMENTS RELEVANT PAGES 1-12) ANNEXURE GANNEXURE H TRUE COPY OF THE ORDER OF THE INCOME TAXAPPELLATE TRIBUNAL DATED 13/08/2018TRUE COPY OF THE ASSESSMENT ORDER DATED27/12/2019