Thr Hon’ble Mr. Justice Ravi v. Hosmani

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28 DAY OF SEPTEMBER, 2021 PRESENT THR HON’BLE MRS.JUSTICEK S.SUJATHA ANT) THR HON’BLE MR. JUSTICE RAVI V. HOSMANI I.T.A.No.673/2016 C/W I.T.A.No.671/2016 &I.T.A.No.672/2016 IN I.T.A.No.673/2016: BETWEEN : BANGALORE METRO RAILCORPORATION LIMITED,3 FLOOR, BMTC COMPLEX,K.H.ROAD, SHANTI NAGAR,BENGALURU-56002 7_. APPELLANT (BY SRI A.SHANKAR, SENIOR COUNSEL A/W|ORI BHAIRAV KUTTAIAH, ADV.) AND : DEPUTY COMMISSIONER OFINCOME TAX, CIRCLE-16(1))[‘T]FLOOR, HMT BHAVAN,BENGALURU-560032 _. RESPONDENT. (BY SRI K.V.ARAVIND, ADV.) THIS INCOMB TAX APPBAL IS FILED UNDER SECTION|260-A OF INCOME TAX ACT 1961, ARISING OUT OF ORDER|DATED 05.08.2016 PASSED IN ITA NO.874/BANG/2015, FOR:THE ASSESSMENT YEAR 2013-2014 PRAYING TO A) TO.FORMULATE THE SUBSTANTIAL QUESTIONS OF LAW ASSTATED ABOVE AND ANSWER THE SAMB IN FAVOUR OF THE! -2-. APPELLANT. B) TO ALLOW THE APPEAL AND SET ASIDE THE.FINDINGS TO THR BXTBRENT AGAINST THR APPBKLLANT IN TORDER PASSED BY THE ITAT, BENGALURU B BENCH IN ITANO.874/BANG/2015 RELATING TO ASSESSMENT YEAR 2013-2014 VIDE ITS ORDER DATED 05.08.2016. IN I.T.A.No.671/2016: BETWEEN : BANGALORE MBTRO RAILCORPORATION LIMITED,3 FLOOR, BMTC COMPLEX,K.H.ROAD, SHANTI NAGAR,BENGALURU-56002 7 _. APPELLANT (BY SRI A.SHANKAR, SENIOR COUNSEL A/W|oRI BHAIRAV KUTTAIAH, ADV.) AND : DBPUTY COMMISSIONBR OFINCOME TAX, CIRCLE-16(1)) FLOOR, HMT BHAVAN,BENGALURU-560032 _. RESPONDENT. (BY SRI K.V.ARAVIND, ADV.) THIS INCOME TAX APPEAL IS FILED UNDER SECTION|260-A OF INCOME TAX ACT 1961, ARISING OUT OF ORDER|DATED 05.08.2016 PASSED IN ITA NO.872/BANG/2015, FOR:THE ASSESSMENT YEAR 2011-2012. PRAYING TO A) TO.FORMULATE THE SUBSTANTIAL QUESTIONS OF LAW AbsSTATED ABOVE AND ANSWER THE SAMB IN FAVOUR OF THE!APPELLANT. B) TO ALLOW THE APPEAL AND SET ASIDE THE.KFINDINGS TO THE EXIENI AGAINST THE APPELLANT IN THEORDER PASSED BY THE ITAT, BENGALURU 'B’ BENCH IN ITA)NO.872/BANG/2015 RELATING TO ASSESSMENT YEAR 2011-2012 VIDE ITS ORDER DATED 05.08.2016. - 3 -. IN I.T.A.No.672/2016: BETWEEN : BANGALORE MBTRO RAILCORPORATION LIMITED,3 FLOOR, BMTC COMPLEX,K.H.ROAD, SHANTI NAGAR,BBNGALURU-560027 APPRLLANT| (BY SRI A.SHANKAR, SENIOR COUNSEL A/W ORI BHAIRAV KUTTAIAH, ADV.) AND ; DBPUTY COMMISSIONBR OFINCOME TAX, CIRCLE-16/(1)) FLOOR, HMT BHAVAN,BBNGALURU-560032 _. RESPONDENT. (BY SRI K.V.ARAVIND, ADV.) THIS INCOMB TAX APPBAL IS FILED UNDER SECTION|2600-A OF INCOME TAX ACT 1961, ARISING OUT OF ORDERDATED 05.08.2016 PASSED IN ITA NO.873/BANG/2015, FOR:THE ASSESSMENT YEAR 2012-2013 PRAYING TO A) TO.FORMULATE THE SUBSTANTIAL QUESTIONS OF LAW ASSTATED ABOVE AND ANSWER THE SAMB IN FAVOUR OF THE!APPELLANT. B) TO ALLOW THE APPEAL AND SET ASIDE THE.FINDINGS TO THR BXTBRENT AGAINST THR APPBKLLANT IN TORDER PASSED BY THE ITAT, BENGALURU 'B’ BENCH IN ITA)NO.873/BANG/2015 RELATING TO ASSESSMENT YEAR 2012-22013 VIDE ITS ORDER DATEBED 05.08.201 THESE APPEALS HAVING BEEN HEARD AND RESERVED,COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY,»s. SUJATHAJ©, DELIVERED THE FOLLOWING: - 4 _| JU DBiGMENT Since common and akin issues are involved inthese appeals, they are heard together and disposed ofby this common judgment. © 2 |ITA Nos.671/2016, 672/2016 and 6073/2016are filed by the assessee under Section 260A of theIncome Tax Act, 1961 (‘Act’ for short) challenging theCcOMmmon order dated 05.08.2016 of the Income TaAppellate Tribunal, Bangalore Bench “B”’, Bangalore(Tribunal’ for short) in ITA Nos.8/72/Bang/2015,.873/Bang/2015,874/Bang/2015relatingTO theassessment years 2011-12, 2012-13 and 2013-14respectively. 3.|The appeals were admitted by this Court toconsider the following substantial questions of law:-_ THESE APPEALS HAVING BEEN HEARD AND RESERVED,COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY,»s. SUJATHAJ©, DELIVERED THE FOLLOWING: - 4 _| JU DBiGMENT Since common and akin issues are involved inthese appeals, they are heard together and disposed ofby this common judgment. © 2 |ITA Nos.671/2016, 672/2016 and 6073/2016are filed by the assessee under Section 260A of theIncome Tax Act, 1961 (‘Act’ for short) challenging theCcOMmmon order dated 05.08.2016 of the Income TaAppellate Tribunal, Bangalore Bench “B”’, Bangalore(Tribunal’ for short) in ITA Nos.8/72/Bang/2015,.873/Bang/2015,874/Bang/2015relatingTO theassessment years 2011-12, 2012-13 and 2013-14respectively. 3.|The appeals were admitted by this Court toconsider the following substantial questions of law:-_ “1.Whether the Tribunal erred in law innot holding that since the levy of service chargesis Still under dispute between BMRCL andKIADB, an order requiring remittance of Tax- -5 -| Deduction at source on such service charges isnot in accordance with law on the facts andcircumstances of the case? D2 Whether the Tribunal erred in law innot holding that the service charges fail the test ofreal income and consequently the order for TaxDeduction at Source 1s unsustainable in law onthe facts and circumstances of the case? 3.|Whether the Tribunal erred in law innot holding that the provisions of section 194J arenot applicable to the facts and consequently thereis no need to deduct any tax at source on thefacts and circumstances of the case? 4.|WithoutprejudicewhethertheTribunal erred in law in not holding M/s KIADBbeing an entity registered under Section 12A ofthe Act, no Tax Deduction at Source would berequired to be made and consequently theappellant BMRCL cannot be held to havedefaulted for non-deduction of Tax Deduction atsource on the facts and circumstances of thecase? 5.|Whether the Tribunal erred in law innot deleting the interest under section 201(1A) onthe facts and circumstances of the case?” -6 -| 4The appellant - assessee is a Special PurposeVehicle entrusted with the task of implementation ofBangalore Metro Rail Project, a joint venture ofGovernment of India and Government of Karnataka. Forthe purpose of construction of piers/portals via ductacross the precincts of Bengaluru region, the assesseeapproached the Karnataka Industrial Area DevelopmentBoard (‘KIADB’ for short) for acquisition of land in asmooth manner and entered into an agreement withM/s KIADB on 20.6.2005. The appellant paid a sum ofRs.1,225 Crores to KIADB during 2005-06 to 2012-13.which the appellant - assessee claims to be thepayments made towards acquisition of the land. — 5.|The Assessing Officer initiated proceedingsunder Section 201 of the Act for the assessment yearsunder consideration on the ground that the appellantought to have deducted tax at source on paymentsmade to KIADB and passed separate orders holding that a a the appellant, as an assessee in default under Section201(1), levied interest under Section 201(1A) of the Act.negating the submissions made by the assessee. Beingaggrieved, the assessee preferred the statutory appealsbefore the Commissioner of Income Tax (Appeals)K((CIT(A)) for short]. The CIT(A) passed the common orderholding that the Assessing Officer was justified inpassing the order under Section 201(1) and levyinginterest under Section 201(1A) of the Act, against whichtheAaASsSSESpreferredappeals1nNITA.Nos.8/72/Bang/2015, 873/Bang/2015, 874/Bang/2015before the Tribunal, which came to be dismissed. Beingaggrieved, the assessee has preferred these appeals. 6. Learned Senior counsel Sri. A. Shankar for|the appellant - assessee submitted that the impugnedservice charges do not constitute income in the hands ofrecipient - KIADB and hence the question of TDS.requirement does not arise. The rate of service charges -8 -| 6. Learned Senior counsel Sri. A. Shankar for|the appellant - assessee submitted that the impugnedservice charges do not constitute income in the hands ofrecipient - KIADB and hence the question of TDS.requirement does not arise. The rate of service charges -8 -| has not reached finality and the matter is still pendingbeforetheHigh|PowWeTcommitteeoT|KarnatakaGovernment. As such, TDS on compensation amountpaid to KIADB for disbursement was not warranted. Theservice charges shall constitute as income of the KIADB-only upon determination by the appropriate authority1e., the State Government. The Tribunal failed to)appreciate these material aspects. Learned Seniorcounsel further submitted that the assessee as well as|theKIADBaAlrsubstantiallycontrolledby the.Government of Karnataka and the recipient - KIADB isnot even liable to pay tax on this amount. No part ofRs.1,225 Crores has been claimed by the assessee as.expenses and the recipient - KIADB also not offered anyincome in this regard. The sum and substance of thearguments is that the impugned service charges cannotconstitute income accruing or arising in the hands ofKIADB for taxation. | TS|Inviting the attention of the Court to theprovisions of Section 194J of the Act, it was argued thatthe phrase “income tax on income comprised therein”has been interpreted by this Court in the case ofCommisstoner of Income Tax vs. Kalyant SteelsLtd.,reported in|(2018) 91 taxmann.com 359(Karnataka), wherein it has been held that the primaryfactor to attract Section 194J is the ingredient of“income comprised therein”. The assessee cannot betreated as the assesse in default for not deducting taxunder Section 194J of the Act. In the present case, theKIADB has not recognized any income out of Rs.1,229—Crores paid by the assessee, the entire amount is shownas deposit receipt as shown in the balance sheet. Hence,no deduction of TDS was necessary and there is noincome comprised in the payments made. As per theagreement entered with the KIADB, 21% was the servicecharges which was reduced to 4% for Phase I andsubsequently, it was reduced to 1% for Phase II. — - 10 -| Though(;overnmentoT|Karnatakaissued.theGovernment Order dated 21.06.2012 fixing the servicecharges for acquisition of land for the Bangalore MetroRail project by KIADB at 4%, Agenda No.os of theproceedings of the 27[=>]High Power committee held on.10.12.2013 would indicate that BMRCL has informed|that 4% service charges charged by KIADB is on thehigher side. High power Committee aiter deliberationsdecided that KIADB|shouldnot charge 4% on)compensation paid. The Chief Secretary has stated thatthe Finance Department should work out the modalities.for meeting the administrative expenses which KIADBrequires in acquiring the lands for BMRCL. 8.|Thus, it was submitted that no final decisionhas been taken by the Government of Karnatakaregarding payment of service charges to KIADB by theappellant for the Phase — I. On the other hand, it hasbeen decided at 1% for the Phase - II. Drawing the attention of the Court to the order of the AssessingOfficer inasmuch as Note No.29 to accounts for the yearending 31.03.2013 mentioned by the auditors, extractedin the said order, it was pointed out that the total costof land and properties acquired through KIADB for rightof way for Bangalore Metro Rail project is subject toquantum of service charges payable to KIADB. Thebalances are under reconciliation with KIADB. Thus, it)was argued that the Assessing Officer has failed toappreciate this portion of the note “subject to quantumof service charges payable to KIADB” and has arrived ata finding that the payment made to KIADB is inclusiveof service charges payable to KIADB. Learned Seniorcounsel appearing for the appellant — assessee hasplaced reliance on host ofjudgments. — OQ Learned counsel Sri. K.V. Aravind for the'revenue argued that as per the agreement enteredinto between the appellant - assessee and KIADB, the OQ Learned counsel Sri. K.V. Aravind for the'revenue argued that as per the agreement enteredinto between the appellant - assessee and KIADB, the service charges at 10% over the tentative costs was.liable to be paid by the assessee. Subsequently, the saidservice charges was modified to 7.5% and thereafterGovernment of Karnataka has issued the Government|Order dated 21.06.2012 fixing the service charges at4%. As could be seen, Note No.29 to accounts for the)year ending 31.03.2013 extracted by the AssessingOfficer|woulddisclose.that|theamountoT|Rs.11,26,09,86,779/- is inclusive of service chargespayable to KIADB. It was submitted that the nature ofassessment in the hands of payee is_ irrelevant.Application and registration under Section 12A of theAct is subject to complying with Sections 11 and 12.The assessee cannot take the contention that the'amounts paid to KIADB is not an income in the hands.of the KIADB. Section 194J does not impose anobligation on the assessee to ascertain whether thedeductee is liable to tax or not. [It was submitted that -13 -| KIADB was subjected to assessment. The service charges collected by KIADB are offered to tax. 10.|Learned counsel for the revenue has. relied upon catena of judgments in support of hiscontentions. 11.)We have carefully considered the rival submissions of the learned counsel appearing for theparties and perused the material on record. 12.Section 194J of the Act reads thus: ¢1947.(1) Any person, not being an individualor a Hindu undivided family, who is responsiblefor paying to a resident any sum by way of— (a)fees for professional services, or| (b) fees for technical services, or [(ba) any remuneration orfees or commission by| whatever name called, other than those on'which tax is deductible under section 192,to a director of a company, orwhich tax is deductible under section 192,to a director of a company, or [(C) XXxx| (ad) xxxx - 14 -— Shall, at the time of credit of such sum to theaccount of the payee or at the time of paymentthereof in cash or by issue of cheque or draft orby any other mode, whichever is earlier, deductan amount equal to two per cent of such sum incase of fees for technical services (not being aprofessional services), or royalty where suchroyalty is in the nature of consideration for sale,distribution or exhibition of cinematographic filmsand ten per cent of such sum in other cases, asincome-tax on income comprised therein:” 13.)In the case ofCommissioner of Income-tax| vs. Hindustan Housing and Land Development Trust Ltd.,reported in(1986) 27 Taxman 450A (SC),theHon’ble Apex Court while considering whether the extraamount of compensation was income arising oraccruing to the assessee, has held that there is a cleardistinction between the cases, where the right to receivepayment is in dispute and it is not a question of merelyquantifying the amount to be received and cases wherethe right to receive payment is admitted and thequantification only of the amount payable is left to be determined in accordance with settled or acceptedprinciples. 14.|InCommissionerofIncome-tax,Bangalore vs. L. Sambashiva Reddy,reported in.(2015) 62 taxmann.com 174 (Karnataka),the Co-ordinate Bench of this Court in the context of the'interim award received whether is liable to tax duringthe assessment year of receiving the said interim awardor when the final award is passed, held that when anassessee receives money, either under an award or by adecree of the court, or under an award passed by thearbitrator, if the amount paid to him is not in dispute,then that amount represents his income. He shouldoffer it to tax in the previous year of the date of paymentof the said amount. But if the amount due to him is in|dispute and it is subject-matter of a litigation andduring the pendency of the litigation, if any interimorder is made for payment of the said amount, the said payment is subject to the final result of the saidproceedings. As the matter was pending before theHon’ble Andhra Pradesh High Court and in pursuant tothe directions of the Hon’ble Andhra Pradesh HighCourt, the interim award was made, it was held that theassessee is liable to pay the tax only aiter the finalconclusion of the dispute before the Hon’ble AndhraPradesh High Court. 15.InKalyani Steels Ltd.,supra, (where one otf us, Hon’ble SSJ was a member), it has been held thus: “11. This provision (194J) makes it clearthat deduction at source Shall be on such income|not otherwise. The primary factor to attract Section|194J is the ingredient of “income comprised|therein”. If no income is reflected in the balance|Sheet and P & L account of HSL towards the.reimbursement charges paid on cost to cost basis|by KSL and ML, it ceases to have the character ofincome. As such, the assessee cannot be treated|as the assessee in default in not deducting tax atsource under Section 194J of the Act. Thearguments of the revenue that the fees paid by the - 17 -| aASSCSSCE1StowardstechnicalServices1S|imaginary one not established with substantialmaterial. — 12. —XXXX 13.It is trite that, if there is no income|embedded in a payment, then TDS_ provisionswould not apply as TDS is only an alternativemethod of collection of taxes. It is beneficial to refer|to the judgment of this Court in the case of|Hyderabad Industries Ltd., vs. ITO [1991] 59Taxmann 202/188 ITR 749 (Kar.), wherein it ts|held that, “an amount which will not be included in|the total income of a person cannot be considered|as “income” for the purpose of deduction of tax atsource at all. The purpose of deduction of tax atSource is not to collect @ sum which is not a taxlevied under the Act, it is to facilitate the collection|of tax lawfully leviable under the Act.” In view ofthe factual finding of the appellate authorities that|the payment made by KSL and ML to HSL for|VArlousEXPEMseEsincurredwouldbeareimbursement and not a fee for technical services, section 194J of the Act is not attracted.” 16.|Thejudgment1nKarnatakaPOowWeTransmissionCorporationLtd.,US,Deputy -18 -| Commissioner of Income-taxreported in(2016) 67 taxmann.com 2591 deals with Section 194A oft the ActThe relevant portion is quoted hereunder:| “26. ...... Section 194A of the Act mandathe tax deductor to deduct ‘income tax’ on ‘any|income by way of interest other than income by|way of interest on securities’. The phrase ‘any|income’andIncometax|thereon’.yfread|harmoniously, it would indicate that the interestwhich finally partakes the character of income,|alone is liable for deduction of the income tax on|that income by way of interest. If the said interestis not finally considered to be an income of the.deductee, as per reversal entries of the provision,|section 194A(1) of the Act would not be made.applicable. In other words, tf no income is|attributable to the payee, there is no liability to|deduct tax at source in the hands of the taxdeductor.” 1/7.In the case oftCommissioner of Income Tax vs. Eli Lilly & Co. [India] [P.] Ltd., reported in|(2009) 178 Taxman 505 (SC), the Hon'ble Apex Court - 19 -| considering the scope of Section 201}1] and Section201/1A] has held thus: 1/7.In the case oftCommissioner of Income Tax vs. Eli Lilly & Co. [India] [P.] Ltd., reported in|(2009) 178 Taxman 505 (SC), the Hon'ble Apex Court - 19 -| considering the scope of Section 201}1] and Section201/1A] has held thus: “34. A perusal of Section 20I1(1) andsection 201(1A) shows that both these provisionsare without prejudice to each other. It means thatthe provisions of both the sub-sections are to beconsidered independently without affecting therights mentioned in either of the sub-sections.Further,interestunderSection201(1A)1scompensatory measure for withholding the taxwhich ought to have gone to the exchequer. Thelevy of interest is mandatory and the absence ofliability for tax will not dilute the default. Theliability of deducting tax at source is in the natureof a _ vicarious liability, which pre-supposeexistence of primary liability. The said liability is)a vicarious liability and the principal liability ts ofthe person who is taxable. A bare reading ofsection 201(1) shows that interest under Section201(1A) read with Section 201(1) can only belevied when a person is declared as an assessee-in-default. For computation of interest undersection 201(1A), there are three elements. One isthe quantum on which interest has to be levied.Second is the rate at which interest has to becharged. Third ts the period for which interest has| to be charged. The rate of interest is provided inthe 1961 Act. The quantum on which interest hasto be paid is indicated by Section 201 (1A) itself.sub-section (1A) specifies "on the amount of suchtax" which is mentioned in sub-section (1)wherein, it is the amount of tax in respect ofwhich the assessee has been declared in default.The object underlying Section 201(1) is to recoverthe tax. In the case of short deduction, the objectis to recover the shortfall. As far as the period ofdefault is concerned, the period starts from thedate of deductibility till the date of actualpayment of tax. Therefore, the levy of interest hasto be restricted for the above stated period only. Itmay be clarified that the date ofpayment by theconcerned employee can be treated as the date ofactual payment.” 18.|In the case of GE India Technology Centre[P.] Ltd., us. Commissioner of Income-Tax andanotherreported in(2010) 193 Taxman 234 (SC), the Hon ’bleApexCourtbased.OTlthe|decisionOT Transmission Corporation of A.P. Ltd., us. CITreported in)(1999) 105 Taxman 742 (SC)has heldthus: -2l -) “Q, ............. Lherefore, as stated earlthe contention of the Department was accepted itwould mean obliteration of the expression "sumchargeable under the provisions of the Act" fromsection 195({1). While interpreting a Section onehas to gwe weightage to every word used in thatsection. While interpreting the provisions of theIncome Tax Act one cannot read the chargingsections of that Act de hors the machinerysections. The Act is to be read as an integratedCode. Section 195 appears in Chapter XVII whichdeals with collection and recovery. As held in thecase of C.LT. Vs. Eli Lilly & Co. (India) (P.) Ltd.{912 ITR 225] the provisions for deduction of TASwhich is in Chapter XVII dealing with collection oftaxes and the charging provisions of the I.T. Actform one single integral, inseparable Code and,therefore, the provisions relating to TDS appliesonly to those sums which are "chargeable to tax"under the Income-tax Act.” 19.|The words “such sum” and “income tax on|income comprised therein” also finds a place in Section194C{|1]|. Adverting to the said provision and referring tBryy Bhushan Parduman Kumar V/s. CITreported in|1979 [2] SCR 16, In|Associated Cement Co. Ltd., vs. - 29 -| 19.|The words “such sum” and “income tax on|income comprised therein” also finds a place in Section194C{|1]|. Adverting to the said provision and referring tBryy Bhushan Parduman Kumar V/s. CITreported in|1979 [2] SCR 16, In|Associated Cement Co. Ltd., vs. - 29 -| Commissioner of Income-taxreported in|[1993] 201ITR 435, the Hon'ble Apex Court has observed that theWords“Incomecomprisedtherein”appearingimmediately after the words, “deduct an amount equalto two percent of such sum as income tax” from theirpurport, cannot be understood as a percentage amountdeductible from the income of the contractor out of the|sum credited to his account or paid to him inpursuance to the said contract. Indeed, it is neitherpossible nor permissible to the payer to determine whatpart of the amount paid by him to the contractorconstitutes the income of the latter. I[t is also notpossible to think that the Parliament could haveintended to cast such impossible burden upon the payernor could it be attributed with the intention of enactingsuch an impractical and unworkable provision. 20.There is no cavil on these legal principles ascollated. However, the crux of the controversy herein, is not about the percentage amount deductible from theincome of the KIADB, it is whether the payment ofRs.1225 Crores paid by the assessee includes theservice charges and constitutes the income. Theassessee’s main ground that no service charges werepaid to the KIADB and the amount of Rs.1225 Crorespaid to the KIADB is part of the compensation to thelands acquired requires consideration as the same goes—to the root of the matter. The liability to deduct taxwould arise only if payment was made towards servicecharges by the assessee which attracts tax liability. Theprimary factor to attract Section 194J is the ingredientof ‘income comprised therein’ as held in|Kalyani Steels Ltd.,supra. In order to establish the same, learnedSenior counsel for the assessee has referred _. Annexure to Schedule — D — Annexure — D1; depositfrom allottees in the balance sheet ot § the!KIADB as at 31.03.2013, copy of which ismade available at page 1/79 of the appeal memo. In - O24 - SI.No.16 of the said Annexure — D1, Code No.5047|Shows deposit of Bangalore Metro Rail Project asRs.122950000050.00 and it is submitted that the sametallies with the payment shown by the assessee for theassessment|YCalrs1nquestion.It|1S|vehementlycontended that ledger accounts in books of KIADBretlects that no service charges from BMRCL has beencollected. On the contrary, the assessment orders of theKIADB placed before the Court refers to certain sum.shown as the amount received towards service charges.However, the break-up of the same is not available. Bethat as it may, it is the strong case of the assessee thatthe amount of Rs.1225 Crores paid by it, is shown asdeposit by the KIADB. D1 «The aforesaid factual aspects requires re-examination by the Tribunal being the last fact findingauthority inasmuch as the payment of Rs.1225 Croresmade by the assessee vis-a-vis the accounts of KIADB— -95 -| relatingTO the.said transaction. Giventhecircumstances, a finding is necessary whether Rs.1229_Crores includes the service charges or not which is theprimary dispute. Hence, we restore the matter to the fileoT theTribunal|Sa ©Nanswering.thesubstantial|questions of law, setting aside the impugned order,Keeping open all the rights and contentions of theparties. — DQ?|Hence, we pass the following ORDER /(The appeals are allowed in part. //(TheimpugnedCOMmmMoorder.dated05.08.2016 of the Income Tax AppellateTribunal, Bangalore Bench “B”, Bangalore in05.08.2016 of the Income Tax AppellateTribunal, Bangalore Bench “B”, Bangalore in ITA|No.8/2/Bang/20195,ITA| No.8/73/Bang/2015andITA|No.8/4/Bang/2015—relatingTO theNo.8/4/Bang/2015—relatingTO the ///( /;( -926 -| assessment years 2011-12, 2012-13 and2013-14 respectively are set aside. The matter is remanded to the Tribunal for| re-consideration keeping open all the rights and contentions of the parties . DQ?|Hence, we pass the following ORDER /(The appeals are allowed in part. //(TheimpugnedCOMmmMoorder.dated05.08.2016 of the Income Tax AppellateTribunal, Bangalore Bench “B”, Bangalore in05.08.2016 of the Income Tax AppellateTribunal, Bangalore Bench “B”, Bangalore in ITA|No.8/2/Bang/20195,ITA| No.8/73/Bang/2015andITA|No.8/4/Bang/2015—relatingTO theNo.8/4/Bang/2015—relatingTO the ///( /;( -926 -| assessment years 2011-12, 2012-13 and2013-14 respectively are set aside. The matter is remanded to the Tribunal for| re-consideration keeping open all the rights and contentions of the parties . The Tribunal shall reconsider the matter and pass appropriate orders in accordance with|law keeping in mind the observations madehereinabove, in an expedite manner. Sd/-.JUDGE| Sd/-.JUDGE.