T.a./77/2007 Of Commissioner Of Income Tax,Jam v. M/S.tata Yodogawa Ltd

IN THE HIGH COURT OF JHARKHAND AT RANCHI Tax Appeal No.77 of 2007 Commissioner of Income Tax, Jamshedpur-Versus- ..... Appellant M/s Tata Yodogawa Ltd. Jamshedpur ...... Respondent CORAM : HON’BLE THE CHIEF JUSTICE HON’BLE MR.JUSTICE APARESH KUMAR SINGH .... For the Appellant : M/s Deepak Roshan, Sr.S.C.(IT) & Rupa Kumari,Adv.For the Respondent: Mr. N.K.Poddar, Sr.Adv. Dated 6th December , 2013 -By Court Being aggrieved by the decision of Income Tax Appellate Tribunal, Circuit Bench, Ranchi in ITA No. 350/PAT/02, the Revenue has preferred this appeal raising the question of law that whether ITAT was not justified in holding that prima facie adjustment can be made while processing the return under Section 143(1)(a) of the Income Tax Act in respect of income tax component liable to be paid by assessee on technical know-how fees paid ignoring that at the point of time when the claim was made in the return for the relevant assessment year there was no existing liability on the part of the respondent of making the said payment because tax paid by the respondent to the department was refunded to the respondent. 2.In the present appeal, the assertion on behalf of the Assessee is that it had incurred expenses in the form of technical know how fees on account of payment made to M/s Eisenwork Sulzau Worfen Austria. The Assessee has paid certain amount as Income tax in pursuance of the order under Section 195 of the Income Tax Act passed by the Assessing Officer. The Assessee contested the same and the CIT(Appeal)cancelled that order. Consequently the Income tax paid by the Assessee was refunded to it. 3.It is their contention that the Assessee claimed Income tax deduction under Section 35AB of the Income Tax Act on technical know how fee as well as Income tax components paid by it thereupon. However, the Assessing Officer while processing of the return of income under Section 143(1)(a) of the Income Tax Act made prima facie adjustment by disallowing the amount of Rs.13,33,733/- representing Income tax component included in the technical know how fee holding it as not allowable expenditure under Section 35AB of the Income Tax Act. On account of the adjustment such additional tax of Rs.93,362/- was raised under Section 143(1A) of the Income Tax Act. 4.The appeal, so preferred by the Assessee, before the Commissioner of Income Tax(Appeals) was disallowed. However, the learned Tribunal in the order passed in ITA No. 350/PAT/02 accepted the contention of the assessee. It held that in the earlier assessment years 1994-95 and 1995-96 in the Assessee's own case the Tribunal held that the Assessing Officer was not justified in making adjustment under Section 143(1)(a) of the Act by disallowing the claim under Section 35AB of the Act. Therefore, the Assessing authority and the Commissioner(Appeals) were not justified in refusing the same. 5.The contention of the assessee is that the earlier judgment rendered by the ITAT in the case of the Assessee itself for the years 1993-94, 1994-95 and 1995-96 on the similar issue has been confirmed by this Court in Tax Appeal No.27 of 2001 and analogous cases. The judgment rendered in the said Tax Appeal has been produced by the counsel for the Assessee. 5.In the present appeal, the Revenue has raised substantial question of law, which however had been considered and decided G.Jha/ by this Court in Tax Appeal No.27 of 2001 in favour of the Assessee. From the perusal of the said judgment, since it appears that the same substantial question of law has been answered in favour of the assessee, the appeal filed by the Revenue is dismissed. The substantial question of law raised in this appeal is answered in favour of the assessee, as such. ( R.Banumathi, C.J. ) ( Aparesh Kumar Singh, J.)