Ita/562/2013 Of The Commissioner Of Income Tax v. M/S Wifi Networks Pvt Ltd

1 IN THR HIGH COURT OF KARNATAKA AT BANGALORE DATEKD THIS THE 1 DAY OF NOVEMBER 2014 PRESENT THR HON'BLEB MR. JUSTICE N. KUMAR AND THR HON’BLE MR. JUSTICE B. MANOHAR| ITA NO.562 OF 2013 C/W ITA NOs.9546, 5960 & 945 OF 20 IN ITA NO.562 OF 2013: BETWEEN; 1. The Commissioner of Income-tax, TDS, No.59, HMT Bhavan. 4[1']Floor, Bellary Road Ganganagar, Bangalore 2. The Deputy Commissioner of Income Tax Circle-18(1), No.59, HMT Bhavan, 4[1']Floor, Bellary Road Ganganagar, Bangalore - 560 032 _ APPKRLLANTS (By Sri.K.V. Aravind, Advocate) oD AND: M/s. Wifi Networks Pvt. Ltd.,No.427, 80 Feet Circular Road,VI Block, KoramangalaBangalore - 560 095s — RBSPONDEBENT (By Sri.Chythanya K.K. Advocate) _— This appeal is filed under Section 260-Aof Income TaxAct 1961, arising out of order dated 21.06.2013 passed in|ITA No.1626/Bang/2012, for the Assessment year 2007-2008 praying to formulate the substantial questions of law|stated above and to allow the appeal and set aside the orders passed by the ITAT, Bangalore in ITA No.1626/Bang/2012|dated 21.06.2013 and confirm the order of the AppellateCommissioner confirming the order passed by the Deputy|Commissioner of Income tax, Circle — 18(1), Bangalore. IN ITA NO.546 OF 2013 BETWEEN; 1. The Commissioner of Income-tax,TDS, No.59, HMT BhavanTDS, No.59, HMT Bhavan 4[1']Floor, Bellary Road Ganganagar, Bangalore 2. The Deputy Commissioner of Income Tax Circle-18(1), No.59, HMT Bhavan a[1']Floor, Bellary Road Ganganagar, Bangalore - 560 032 _ APPKRLLANTS (By Sri.K.V. Aravind, Advocate) 3 AND: M/s. Wifi Networks Pvt. Ltd.,No.427, 80 Feet Circular Road,VI Block, KoramangalaBangalore 560 095 _ RBSPONDENT (By Sri.Chythanya K.K. Advocate) _— This appeal is filed under Section 260-Aof Income TaxAct 1961, arising out of order dated 21.06.2013 passed in|ITA No.1624/Bang/2012, for the Assessment year 2006-2007 praying to formulate the substantial questions of law|stated above and to allow the appeal and set aside the orderspassed by the ITAT, Bangalore in ITA No.1624/Bang/2012|dated 21.06.2013 and confirm the order of the Appellate|Commissioner confirming the order passed by the Deputy|Commissioner of Income tax, Circle — 18(1), Bangalore. IN ITA NO.560 OF 2013: BETWEEN; 1. The Commissioner of Income-tax,TDS, No.59, HMT Bhavan.4[1']Floor, Bellary RoadGanganagar, Bangalore. 2. The Deputy Commissioner of Income TaxCircle-18(1) |No.59, HMT Bhavan,a[1']Floor, Bellary RoadGanganagar, Bangalore - 560 032 _ APPKRLLANTS (By Sri.K.V. Aravind, Advocate) AND: M/s. Wifi Networks Pvt. Ltd.,No.427, 80 Feet Circular Road, 4 VI Block, KoramangalaBangalore 560 O95. ~_ RBSPONDENT. (By Sri.Chythanya K.K. Advocate) © This appeal is filed under Section 260-Aof Income TaxAct 1961, arising out of order dated 21.06.2013 passed in|ITA No.1627/Bang/2012, for the Assessment year 200/72008 praying to formulate the substantial questions of law|stated above and to allow the appeal and set aside the orders passed by the ITAT, Bangalore in ITA No.1627/Bang/2012|dated 21.06.2013 and confirm the order of the Appellate|Commissioner confirming the order passed by the Deputy|Commissioner of Income tax, Circle — 18(1), Bangalore. IN ITA NO.545 OF 2013: BETWEEN; 1. The Commissioner of Income-tax, TDS, No.59, HMT Bhavan 4[1']Floor, Bellary Road Ganganagar, Bangalore 2. The Deputy Commissioner of Income Tax Circle-18(1), No.59, HMT Bhavan, a[1']Floor, Bellary Road Ganganagar, Bangalore - 560 032 .. APPELLANTS (By Sri.K.V. Aravind, Advocate) AND: M/s. Witi Networks Pvt. Ltd.,No.427, 80 Feet Circular Road, 5 VI Block, KoramangalaBangalore 560 O95. ~_ RBSPONDENT. (By Sri.Chythanya K.K. Advocate) © IN ITA NO.545 OF 2013: BETWEEN; 1. The Commissioner of Income-tax, TDS, No.59, HMT Bhavan 4[1']Floor, Bellary Road Ganganagar, Bangalore 2. The Deputy Commissioner of Income Tax Circle-18(1), No.59, HMT Bhavan, a[1']Floor, Bellary Road Ganganagar, Bangalore - 560 032 .. APPELLANTS (By Sri.K.V. Aravind, Advocate) AND: M/s. Witi Networks Pvt. Ltd.,No.427, 80 Feet Circular Road, 5 VI Block, KoramangalaBangalore 560 O95. ~_ RBSPONDENT. (By Sri.Chythanya K.K. Advocate) © This appeal is filed under Section 260-Aof Income TaxAct 1961, arising out of order dated 21/06/2013 passed in|ITA No.1625/Bang/2012, for the Assessment year 2006-2007 praying to formulate the substantial questions of law|stated above and to allow the appeal and set aside the orders passed by the ITAT, Bangalore in ITA No.1625/Bang/2012|dated 21.06.2013 and confirm the order of the AppellateCommissioner confirming the order passed by the Deputy|Commissioner of Income tax, Circle — 18(1), Bangalore. These appeals coming on for Admission this day,N.KUMAR, J.delivered the following:- COMMON JUDGMENT The Revenue has preferred these appeals challengingthe order passed by the Tribunal. — 2 |All these appeals arise out of a same common|order involving the same assessee and therefore, they are)taken up for consideration together and disposed of by this|common order. 6 3.|The common substantial question of law which isframed in this appeal is as under:- “ Whether on the facts and in the circumstance ofthe case, the Tribunal was Justified in holding that,the payment in question does not attract section194J as credit is given to the account of the payeeby virtue of oral agreement dated 01.06.2006withoutexaminingthe|existencesuchoral|agreement and recorded a perverse finding?”| 3.|Learned counsel for the Revenue submitted that|the ground on which the Tribunal has granted relief to the|assessee was not a ground urged by the assessee in the|lower forums as well as before the Tribunal also. But the!Tribunal while writing the judgment without considering theeround urged by the assessee felt the issue in these appeals|could be considered from a different prospective and decided|the appeals on a ground which was not Known to the parties,or which was made known to the parties at the time of.hearing the appeal and therefore, he submits the impugned|order is to be set aside and the matter has to be remanded| T back to the Tribunal for giving an opportunity to the Revenueto have their say as far as the ground which is raised by theTribunal while passing the impugned order. 4The learned counsel for the assessee submits the|eround urged by the assessee is not at all considered. Even|if the court wants to decide the appeal on the different|eround the finding has to be recorded on the ground which isurged based on the orders passed by the two _ loweauthorities. Therefore the case has to be sent back to the)Tribunal and the Tribunal may be directed to consider the|appeals on the ground urged by the assessee. 5 |In view of the aforesaid facts and submissions,we are of the view that the order passed by the Tribunal is not proper. It violates principles of natural justice. The|Tribunal has a jurisdiction to decide the appeals on the|eround which are not urged by both the parties. But the|parties should be given an opportunity to have their say. 6.|In that view of the matter, we deem it proper to|set aside the order impugned herein and remand back the| matter to the Tribunal and ‘Tribunal shall consider theappeals on the ground urged by the assessee as well as the|additional ground the Tribunal found relevant to decide the|appeals after recording the finding on both the grounds the|appeal may be disposed of on merits in accordance with law. That would meet ends of justice. Ordered accordingly. Bsv_ Sd/- |JUDGE.Sd/-|JUDGE.