M/S Ongc Ecpf Trust v. Assistant Commissioner Of Income Tax

IN THE HIGH COURT OF UTTARAKHAND AT NAINITALIncome Tax Appeal No. 30 of 2008 M/s ONGC ECPF Trust. ………. Appellant Versus Assistant Commissioner of Income Tax. ………. Respondent Income Tax Appeal No. 31 of 2008 M/s ONGC ECPF Trust. ………. Appellant Versus Assistant Commissioner of Income Tax. ………. Respondent Income Tax Appeal No. 32 of 2008 M/s ONGC ECPF Trust. ………. Appellant Versus Assistant Commissioner of Income Tax. ………. Respondent & Income Tax Appeal No. 33 of 2008 M/s ONGC ECPF Trust. ………. Appellant Versus Assistant Commissioner of Income Tax. ………. Respondent Mr. Rupesh Jain and Mr. Udyog Shukla, Advocates for the appellant. Mr. Hari Mohan Bhatia, Advocate for the respondent. JUDGMENT Coram: Hon’ble Barin Ghosh, C.J. Hon’ble Servesh Kumar Gupta, J. BARIN GHOSH, C. J. (Oral) Since common question of law is involved in all these appeals, they are being decided together. 2. The interest accrued on the funds managed by the appellant / assessee, as adjudged by the Assessing Officer, was taxable in the hands of the individuals, on whose account, those interest accrued and, accordingly, it was held by the Assessing Officer that the appellant / assessee was obliged to deduct tax from such interest and to deposit the same. The Assessing Officer assessed the appellant / assessee in respect of tax so to be deducted and to be deposited. Against that, an appeal was preferred unsuccessfully by the appellant / assessee. Appellant / assessee was, again, unsuccessful before the Tribunal. Appellant / assessee then approached this Court by filing appeals. While the appeals were pending or soon before the appeals were filed, appellant / assessee had approached the Tribunal contending that there is mistake in its order, which requires rectification. It was contended that the money, upon which interest has accrued, came from two sources, namely, from the employer’s contribution and the employees’ contribution. It was contended that interest on the employer’s contribution was taxable only at the time of payment, inasmuch as, the same should be treated, in law, as part of the salary and salary is taxable only at the time of payment and, accordingly, appellant / assessee had no obligation to deduct tax, as no payment had been made to the individuals, who were entitled to the same. This contention, as was placed in the rectification application, was accepted by the Tribunal. Appellant / assessee has preferred the present appeals against the original order of the Tribunal, as stood modified by the rectification order, in respect of interest earned on the employees’ contribution. 3. Appellant / assessee is purporting to contend that the appellant / assessee is a trustee of all those employees, on whose account the interest has accrued, and, since status of trust is that of an individual, Section 194-A of the Act will not apply. It is being contended that it is a pure question of law and can be taken in the appeal. No dispute that it is a question of law and can be taken in the appeal, but not in a second appeal after having had withdrawn the first appeal without any reservation. 3. Appellant / assessee is purporting to contend that the appellant / assessee is a trustee of all those employees, on whose account the interest has accrued, and, since status of trust is that of an individual, Section 194-A of the Act will not apply. It is being contended that it is a pure question of law and can be taken in the appeal. No dispute that it is a question of law and can be taken in the appeal, but not in a second appeal after having had withdrawn the first appeal without any reservation. 4. The learned counsel for the appellant / assessee submitted, placing reliance upon a judgment of the Bombay High Court, that, since rectification of the original order has been made, the original order has been modified. No dispute that the original order stands modified to the extent the same has been rectified. In the event, rectification of the remaining part, in respect whereof, the present appeals have been preferred, was sought and the rectification had not been allowed; the present appeals could be preferred, but, since rectification of that part of the original order, which is under challenge in these appeals, was not sought for and that part of the original order was also the subject matter of challenge in the previous appeals and those appeals have been withdrawn without reservation, the present appeals against that part of the original order are not maintainable and, accordingly, the appeals are dismissed. G (Servesh Kumar Gupta, J.) 27.06.2013 (Barin Ghosh, C. J.) 27.06.2013