Mr.Thomas John Muthoot, Kozhencherry V. The ACIT, Thiruvalla

ITA 70/COCH/2014

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7245 (ITAT-COCHIN)
• Duration Of Justice: 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 01-07-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 24-02-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K K JOHN
• Assessee Lawyers: R SRINIVASAN
• Keywords: Business income
• Section: 201(1)

Judgement Text

1 ITA NO. 63&64M 83-85&7-72/COCH/2014 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI CHANDRA PO OJARI (AM) I.T.A NO. 63 & 64/COCH/2014 (ASSESSMENT YEARS 2006-07 & 2007-08) SHRI THOMAS GEORGE MUTHOOT VS ACIT, CIR.1(1) MUTHOOT HOUSE, KOZHENCHERRY THIRUVALLA PAN : ABNPT4693G (APPELLANT) (RESPONDENT) I.T.A NO. 70 TO 72/COCH/2014 (ASSESSMENT YEARS 2005-06 TO 2007-08) SHRI THOMAS JOHN MUTHOOT VS ACIT, CIR.1 MUTHOOT HOUSE, KOZHENCHERRY THIRUVALLA PAN : ABNPT4694B (APPELLANT) (RESPONDENT) I.T.A NO. 83 TO 85/COCH/2014 (ASSESSMENT YEARS 2005-06 TO 2007-08) SHRI THOMAS MUTHOOT VS ACIT, CIR.1 MUTHOOT HOUSE, KOZHENCHERRY THIRUVALLA PAN : AEAPM0424L (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R SRINIVASAN RESPONDENT BY : SHRI K.K. JOHN, SR DR DATE OF HEARING : 01-07-2014 DATE OF PRONOUNCEMENT : 28-08-2014 O R D E R 2 ITA NO. 63&64M 83-85&7-72/COCH/2014 PER N.R.S. GANESAN (JM) ALL THE APPEALS OF THE TWO INDEPENDENT ASSESSEES A RE DIRECTED AGAINST THE RESPECTIVE ORDERS OF THE CIT(A). SINCE COMMON ISSUE ARISES FOR CONSIDERATION IN ALL THE APPEALS WE HEARD THEM TOGETHER AND ARE DISPOSED OF BY THIS COMMON ORDER. 2. SHRI R SRINIVASAN, THE LD.RPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER DISALLOWED THE PAYMENT O F INTEREST U/S 40(A)(IA) FOR NON DEDUCTION OF TAX. ACCORDING TO THE LD.REPR ESENTATIVE, ALL THE ASSESSEES ARE PARTNERS IN THE RESPECTIVE FIRMS AND THEY HAVE BORROWED LOANS. THE ASSESSEES HAVE ALSO PAID INTEREST. ACC ORDING TO THE LD.REPRESENTATIVE, THE PARTNERS AND PARTNERSHIP FIR M ARE ONE AND THE SAME, THEREFORE, ANY TRANSCTION BETWEEN THE PARTNERS AND THE PARTNERSHIP FIRM CANNOT BE SUBJECTED TO TDS. EVEN OTHERWISE, ACCORD ING TO THE LD.REPRESENTATIVE, THE RECIPIENT HAS ALREADY PAID T AX, THEREFORE, THERE CANNOT BE ANY DEDUCTION. THE LD.REPRESENTATIVE PLA CED RELIANCE ON THE JUDGMENT OF THE APEX COURT IN THE CASE OF CIT VS HI NDUSTAN COCA COLA BEVERAGES P LTD (2007) 293 ITR 226(DEL). 3. ON THE CONTRARY, SHRI K.K. JOHN, THE LD.DR SUBMI TTED THAT UNDER THE INCOME-TAX ACT, PARTNERS AND PARTNERSHIP FIRM ARE D ISTINCT AND SEPARATELY 3 ITA NO. 63&64M 83-85&7-72/COCH/2014 ASSESSABLE UNITS. THOUGH UNDER THE COMMON LAW PART NERS AND PARTNERSHIP FIRMS ARE ONE AND THE SAME, UNDER THE INCOME-TAX AC T, THEY ARE TREATED SEPARATELY. THEREFORE, THE ASSESSEE HAD TO DEDUCT TAX. IN THE ABSENCE OF ANY DEDUCTION OF TAX ON PAYMENT OF INTEREST, ACCORD ING TO THE LD.DR, THE ASSESSING OFFICER HAS RIGHTLY DISALLOWED INTEREST P AID BY THE ASSESSEE TO THE FIRM U/S 40(A)(IA) OF THE ACT. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. ADMITTED LY ALL THE ASSESSEES ARE ASSESSED AS INDIVIDUALS IN THEIR INDIVIDUAL CAPACIT Y. ALL THE ASSESSEES ARE PARTNERS IN THE RESPECTIVE FIRMS. ALL THE ASSESSEE S PAID INTEREST TO THE RESPECTIVE PARTNERSHIP FIRMS ON THE LOANS BORROWED. THE QUESTION ARISES FOR CONSIDERATION IS WHEN THE INDIVIDUAL PARTNERS P AID INTEREST TO THE PARTNERSHIP FIRMS WHETHER THEY ARE LIABLE TO DEDUCT TAX U/S 194A OF THE ACT. FOR THE PURPOSE OF CONVENIENCE WE ARE REPRODUCING S ECTION 194A OF THE ACT BELOW: 194A. (1) ANY PERSON, NOT BEING AN INDIVIDUAL OR A HINDU UNDIVIDED FAMILY, WHO IS RESPONSIBLE FOR PAYING TO A RESIDENT ANY INCOME BY WAY OF INTEREST OTHER THAN INCOME BY WAY OF INTEREST ON SECURITIES, SHALL, AT THE TIME OF CREDI T OF SUCH INCOME TO THE ACCOUNT OF THE PAYEE OR AT THE TIME O F PAYMENT THEREOF IN CASH OR BY ISSUE OF A CHEQUE OR DRAFT OR BY ANY OTHER 4 ITA NO. 63&64M 83-85&7-72/COCH/2014 MODE, WHICHEVER IS EARLIER, DEDUCT INCOME-TAX THERE ON AT THE RATES IN FORCE: PROVIDED THAT AN INDIVIDUAL OR A HINDU UNDIVIDED FAMILY, WHOSE TOTAL SALES, GROSS RECEIPTS OR TURNOVER FROM THE BUSINESS OR PROFESSION CARRIED ON BY HIM EXCEED THE MONETARY LIMITS SPECIFIED UNDER CLAUSE (A) OR CLAUSE (B) OF SECTION 44AB DURING THE FINANCIAL YEAR IMMEDIATELY PRECEDING THE FINANCIAL YEAR IN WHICH SUCH INTEREST IS CREDITED OR PAID, SH ALL BE LIABLE TO DEDUCT INCOME-TAX UNDER THIS SECTION. EXPLANATION.- FOR THE PURPOSES OF THIS SECTION, WH ERE ANY INCOME BY WAY OF INTEREST AS AFORESAID IS CREDITED TO ANY ACCOUNT, WHETHER CALLED INTEREST PAYABLE ACCOUNT OR SUSPENSE ACCOUNT OR BY ANY OTHER NAME, IN THE BOO KS OF ACCOUNT OF THE PERSON LIABLE TO PAY SUCH INCOME, SU CH CREDITING SHALL BE DEEMED TO BE CREDIT OF SUCH INCO ME TO THE ACCOUNT OF THE PAYEE AND THE PROVISIONS OF THIS SEC TION SHALL APPLY ACCORDINGLY. 5. A BARE READING OF ABOVE PROVISIONS OF SECTION 19 4A CLEARLY SHOWS THAT INDIVIDUALS AND HUFS ARE EXEMPT FROM THE PROVI SIONS OF 40(A)(IA) OF THE ACT IN RESPECT OF ANY INTEREST PAID TO PARTNERS HIP FIRMS OR ANY PERSON. HOWEVER, PROVISO TO SECTION 40(A)(IA) MAKES AN EXEM PTION TO THE MAIN SECTION. IN THIS CASE, THE BUSINESS INCOME OF THE ASSESSEE EXCEEDED THE LIMIT PRESCRIBED U/S 44AB OF THE ACT, THEREFORE, TH E ASSESSEE, EVEN THOUGH 5 ITA NO. 63&64M 83-85&7-72/COCH/2014 INDIVIDUAL IS LIABLE TO DEDUCT TAX WHILE PAYING INT EREST TO THE FIRM U/S 194A(1) OF THE I.T. ACT. 6. NOW COMING TO THE CONTENTION OF THE ASSESSEE THA T THE RECIPIENT FIRM HAS ALREADY PAID THE TAX, THIS TRIBUNAL FINDS NO ME RIT IN SUCH CONTENTION. THE APEX COURT, IN HINDUSTAN COCO COLA BEVERAGES (P ) LTD (SUPRA), AFTER REFERRING TO THE CIRCULAR ISSUED BY THE CBDT IN CIR CULAR NO.275/201/95-IT(B) DATED 29-01-1997 FOUND THAT WHEN THE DEDUCTEE-ASSES SEE PAID THE TAX, NO DEMAND VISUALIZED U/S 201(1) OF THE ACT SHALL BE EN FORCED AGAINST THE DEFAULTER-ASSESSEE. IN THE CASE BEFORE US, THE DIS ALLOWANCE WAS MADE U/S 40(A)(IA) OF THE ACT. THE OBJECT OF SECTION 40(A)( IA) IS TO COMPEL THE ASSESSEE TO DEDUCT TAX AT SOURCE. IN OTHER WORDS, AS A PRECONDITION FOR CLAIMING THE EXPENDITURE OTHERWISE ALLOWABLE, THE A SSESSEE HAS TO DEDUCT TAX AS REQUIRED UNDER THE RELEVANT PROVISIONS OF TH E ACT. ON THE CONTRARY, THE OBJECT OF SECTION 201 IS ONLY TO COMPENSATE THE GOVERNMENT FOR FAILURE OF THE ASSESSEE TO DEDUCT TAX AT SOURCE. SECTION 2 01 ENABLES THE GOVERNMENT TO RECOVER THE TAX FROM THE ASSESSEE WHO DEFAULTS IN MAKING THE DEDUCTION AT THE TIME OF PAYMENT. THEREFORE, T HE PROVISIONS OF SECTION 40(A)(IA) AND 201 OPERATE IN TWO DIFFERENT FIELDS. SECTION 40(A)(IA) WILL NOT OVERRIDE THE PROVISIONS OF SECTION 201 OF THE INCOM E-TAX ACT. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE JUDGMENT OF THE APEX COURT IN HINDUSTAN COCO COLA BEVERAGES (P) LTD (SUP RA) RENDERED IN THE 6 ITA NO. 63&64M 83-85&7-72/COCH/2014 CONTEXT OF SECTION 201 MAY NOT BE APPLICABLE IN THE CONTEXT OF APPLICATION OF SECTION 40(A)(IA) OF THE ACT. 7. WE HAVE CAREFULLY GONE THROUGH THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT. THE PARLIAMENT BY FINANCE ACT, 2012 INCOR PORATED SECOND PROVISO TO SECTION 40(A)(IA) OF THE ACT WITH EFFECT FROM 01-04-2013. FOR THE PURPOSE OF CONVENIENCE, WE ARE REPRODUCING SECOND P ROVISO AS IT IS INSERTED BY FINANCE ACT, 2012 BELOW: PROVIDED FURTHER THAT WHERE AN ASSESSEE FAILS TO DEDUCT THE WHOLE OR ANY PART OF THE TAX IN ACCORDANCE WITH THE PROVISIONS OF CHAPTER XVII-B ON ANY SUCH SUM BUT IS NOT DEEMED TO BE AN ASSESSEE IN DEFAULT UNDER THE FIRST PROVISO TO S UB-SECTION (1) OF SECTION 201, THEN, FOR THE PURPOSE OF THIS S UB-CLAUSE, IT SHALL BE DEEMED THAT THE ASSESSEE HAS DEDUCTED AND PAID THE TAX ON SUCH SUM ON THE DATE OF FURNISHING OF RETURN OF INCOME BY THE RESIDENT PAYEE REFERRED TO IN THE SAID PROVI SO. 8. IN VIEW OF THIS SECOND PROVISO WHICH CAME TO BE INSERTED IN THE STATUTE BOOK WITH EFFECT FROM 01-04-2013, WHEREVER THE ASSESSEE FAILS TO DEDUCT TAX ON ANY SUM, BUT IS NOT DEEMED TO BE AN A SSESSEE IN DEFAULT U/S 201(1) THEN, IT SHALL BE DEEMED THAT THE ASSESS EE HAS DEDUCTED AND PAID TAX ON THE SAID SUM ON THE DATE OF FURNISHING OF THE RETURN OF INCOME. 7 ITA NO. 63&64M 83-85&7-72/COCH/2014 9. THE NEXT QUESTION ARISES FOR CONSIDERATION IS WH ETHER THE SECOND PROVISO TO SECTION 40(A)(IA) AS INCORPORATED BY FIN ANCE ACT, 2012 IS RETROSPECTIVE IN OPERATION OR PROSPECTIVE IN OPERAT ION. WE ARE CONSCIOUS THAT SOME OF THE BENCHES OF THIS TRIBUNAL IN THE CO UNTRY HAS TAKEN THE VIEW THAT THE SECOND PROVISO TO SECTION 40(A)(IA) I S RETROSPECTIVE IN OPERATION, THEREFORE, APPLICABLE TO EARLIER PERIOD ALSO. HOWEVER, THE JURISDICTIONAL HIGH COURT IN THE CASE OF PRUDENTIAL LOGISTICS & TRANSPORTS IN ITA NO. 01 OF 2014 JUDGMENT DATED 13 TH JANUARY, 2014, COPY OF WHICH HAS BEEN FILED BY THE LD.DR, FOUND THAT THE SECOND PROV ISO IS NOT APPLICABLE FOR EARLIER ASSESSMENT YEARS. IN FACT, THE KERALA HIGH COURT HAS OBSERVED AS FOLLOWS: 5. READING OF SECTION 40A(IA) ALONG WITH 2 ND PROVISO AND SECTION 201(1) ALONG WITH PROVISO, IT WOULD MEAN TH AT THE MANDATE OR REQUIREMENT ON THE PART OF THE PAYER TO DEDUCT TAX AT SOURCE IS NOT SO STRICT IF THEY ARE ABLE TO SHOW THAT THE PAYEE OR THE RECIPIENT OF THE AMOUNTS HAS PAID TAX IN ACC ORDANCE WITH THE PROVISIONS OF SECTION 201(1) AND THE PROVI SO. 6. THIS WAS NOT THE CLAIM MADE BY THE ASSESSEE BEFO RE THE ASSESSING OFFICER. THE CLAIM WAS ON A DIFFEREN T STAND, INITIALLY REFLECTING THE AMOUNTS AS LOAN IN THE ACC OUNT BOOKS THOUGH SHOWN AS FREIGHT CHARGES IN THE RETURNS AND LATER EXPLAINED THAT IT WAS NOT THE LOAN AMOUNT BUT FREIG HT CHARGES. IT WAS NEVER THE CASE OF THE ASSESSEE THAT THERE WA S NO 8 ITA NO. 63&64M 83-85&7-72/COCH/2014 MANDATE SUBSEQUENT TO AMENDMENT, TO DEDUCT TAX AS T DS IN THE LIGHT OF ABOVE PROVISIONS. THE ASSESSMENT YEAR IN QUESTION IS 2007-08 AND THE AMENDMENT GIVING BREATH ING SPACE TO PAYER OF AMOUNTS IS WITH EFFECT FROM 01/04 /2013. THEREFORE, THE SAID BENEFIT IS NOT APPLICABLE TO TH E ASSESSEE. EVEN OTHERWISE, ON FACTUAL SITUATION, THE VERY FACT THAT THESE AMOUNTS WERE CLAIMED AS LOAN INITIALLY, TILL THE SC RUTINY CAME UP FOR CONSIDERATION BEFORE ASSESSING AUTHORITY WOU LD ONLY INDICATE THE REAL INTENTION OF THE ASSESSEE FIRM I. E NOT TO DISCLOSE THIS AMOUNT AS FREIGHT CHARGES BUT SOMETHI NG ELSE AS REPAYMENT OF LOAN. 10. IN VIEW OF THE ABOVE JUDGMENT OF THE JURISDICTI ONAL HIGH COURT, IT IS BINDING ON THIS TRIBUNAL THAT SECOND PROVISO WHICH WAS INTRODUCED BY FINANCE ACT, 2012 IS NOT APPLICABLE FOR THE ASSESSM ENT YEARS UNDER CONSIDERATION. HENCE, THE CIT(A) HAS RIGHTLY CONFI RMED THE ADDITION MADE BY THE ASSESSING OFFICER. 11. THE NEXT CONTENTION OF THE ASSESSEE IS THAT THE ASSESSEE HAS ALREADY PAID THE AMOUNT, PROVISIONS OF SECTION 40(A)(IA) IS APPLICABLE ONLY IN RESPECT OF THE AMOUNT WHICH REMAINS TO BE PAYABLE O N THE LAST DAY OF THE FINANCIAL YEAR. THE LD.REPRESENTATIVE PLACED HIS R ELIANCE ON THE DECISION OF THE SPECIAL BENCH OF THIS TRIBUNAL IN MERILYN SHIPP ING & TRANSPORTS VS ADDLCIT (2012) 70 DTR 81 AND ALSO THE JUDGMENT OF T HE ALLAHABAD HIGH COURT IN CIT VS M/S VECTOR SHIPPING SERVICES (P) LT D I.T.A NO.122 OF 2013 9 ITA NO. 63&64M 83-85&7-72/COCH/2014 JUDGMENT DATED 09-07-2013 AND SUBMITTED THAT THE SL P FILED BY THE REVENUE IN THE APEX COURT AGAINST THE JUDGMENT OF T HE ALLAHABAD HIGH COURT IN M/S VECTOR SHIPPING SERVICES (P) LTD (SUPR A) IS DISMISSED BY THE APEX COURT. IT IS WELL SETTLED PRINCIPLES OF LAW T HAT THE LAW LAID DOWN BY THE APEX COURT IS BINDING ON ALL COURTS AND AUTHORITIES INCLUDING THIS TRIBUNAL UNDER ARTICLE 141 OF THE CONSTITUTION OF INDIA. IT IS ALSO EQUALLY SETTLED PRINCIPLE THAT A DISMISSAL OF SLP WITHOUT ANY DISCU SSION IS NOT THE LAW DECLARED BY THE APEX COURT. THE APEX COURT THOUGHT IT FIT THAT IT WAS NOT A FIT CASE TO BE ADMITTED FOR CONSIDERATION. THEREFO RE, WHILE DISMISSING THE SLP, THE APEX COURT DID NOT DECLARE ANY LAW. HENCE , WE CANNOT SAY THAT THE APEX COURT HAS DECLARED THE LAW DECLARING THAT SECTION 40(A)(IA) IS APPLICABLE ONLY IN RESPECT OF THE AMOUNTS REMAINS T O BE PAYABLE AT THE LAST DAY OF THE FINANCIAL YEAR. 12. WE HAVE ALSO CAREFULLY GONE THROUGH THE JUDGMEN T OF THE ALLAHABAD HIGH COURT IN CIT VS M/S VECTOR SHIPPING SERVICES ( P) LTD (SUPRA), COPY OF WHICH IS FILED BY THE ASSESSEE. THE ALLAHABAD HIGH COURT, AFTER REPRODUCING THE RELEVANT PARAGRAPH FROM THE ORDER O F CIT(A) AND REFERRING TO THE DECISION OF THE SPECIAL BENCH OF THIS TRIBUN AL IN MERILYIN SHIPPING & TRANSPORTS (SUPRA) FOUND THAT THE TRIBUNAL HAS NOT COMMITTED AN ERROR. IT IS OBVIOUS THAT THERE IS NO DISCUSSION ABOUT THE CORRE CTNESS OR OTHERWISE OF THE DECISION RENDERED BY THE SPECIAL BENCH OF THIS TRIBUNAL IN MERILYN 10 ITA NO. 63&64M 83-85&7-72/COCH/2014 SHIPPING & TRANSPORTS (SUPRA). HOWEVER, WE FIND TH AT THE GUJARAT HIGH COURT IN THE CASE OF CIT VS SIKANDARKHAN N TUNVAR I TA NOS 905 OF 2012, 709 & 710 OF 2012, 333 OF 2013, 832 OF 2012, 857 OF 2012, 894 OF 2012, 928 OF 2012, 12 OF 2013, 51 OF 2013, 58 OF 2013 AND 218 OF 2013 JUDGMENT DATED 02-05-2013 CONSIDERED THE DECISION OF THE SPE CIAL BENCH OF THIS TRIBUNAL IN MERILYN SHIPPING & TRANSPORTS (SUPRA) A ND SPECIFICALLY DISAGREED WITH THE PRINCIPLES LAID DOWN BY THE SPEC IAL OF THIS TRIBUNAL IN MERILYN SHIPPING & TRANSPORTS (SUPRA). THE CALCUTT A HIGH COURT ALSO IN THE CASE OF CRESCENT EXPORTS SYNDICATE & ANOTHER IN ITAT 20 OF 2013 AND GA 190 OF 2013 JUDGMENT DATED 03-04-2013 CONSIDERED ELABORATELY THE JUDGMENT OF THE SPECIAL BENCH OF THIS TRIBUNAL IN M ERILYN SHIPPING & TRANSPORTS (SUPRA) AND FOUND THAT THE DECISION REND ERED BY THE SPECIAL BENCH OF THIS TRIBUNAL IS NOT THE CORRECT LAW. IT IS WELL SETTLED PRINCIPLES OF LAW THAT WHEN DIFFERENT HIGH COURTS EXPRESSED DIFFE RENT OPINIONS ON A POINT OF LAW, THEN, NORMALLY, THE BENEFIT OF DOUBT UNDER THE TAXATION LAW WOULD GO TO THE ASSESSEE. IT IS ALSO EQUALLY SETTLED PRINCI PLES OF LAW THAT THE JUDGMENT WHICH DISCUSSES THE POINT IN ISSUE ELABORA TELY AND GIVES AN ELABORATE REASONING HAS TO BE PREFERRED WHEN COMPAR ED TO THE JUDGMENT WHICH HAS NO REASONING AND DISCUSSION. ADMITTEDLY, THE CALCUTTA HIGH COURT AND GUJARAT HIGH COURT HAVE DISCUSSED THE ISS UE ELABORATELY AND THE SPECIFIC REASONING HAS ALSO BEEN RECORDED AS TO WHY THE SPECIAL BENCH IS NOT CORRECT. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION 11 ITA NO. 63&64M 83-85&7-72/COCH/2014 THAT THE JUDGMENTS OF THE CALCUTTA HIGH COURT CRESC ENT EXPORTS SYNDICATE & ANOTHER (SUPRA) AND GUJARAT HIGH COURT IN SIKANDA RKHAN N TUNVAR (SUPRA) HAVE TO BE PREFERRED WHEN COMPARED TO THE A LLAHABAD HIGH COURT IN M/S VECTOR SHIPPING SERVICES (P) LTD (SUPRA). 13. FOR THE PURPOSE OF CONVENIENCE WE REPRODUCING B ELOW THE OBSERVATIONS MADE BY THE CALCUTTA HIGH COURT IN CRE SCENT EXPORTS SYNDICATE & ANOTHER (SUPRA) AND GUJARAT HIGH COURT IN SIKANDARKHAN N TUNVAR (SUPRA): CALCUTTA HIGH COURT IN CRESCENT EXPORTS SYNDICATE & ANOTHER (SUPRA) BEFORE DEALING WITH THE SUBMISSIONS OF THE LEARNE D COUNSEL APPEARING FOR THE ASSESSEES IN BOTH THE APP EALS WE HAVE TO EXAMINE THE CORRECTNESS OF THE MAJORITY VIE WS IN THE CASE OF MERILYN SHIPPING. WE ALREADY HAVE QUOTED EXTENSIVELY BOTH THE MAJORI TY AND THE MINORITY VIEWS EXPRESSED IN THE AFORESAID C ASE. THE MAIN THRUST OF THE MAJORITY VIEW IS BASED ON THE FA CT THAT THE LEGISLATURE HAS REPLACED THE EXPRESSION AMOUNTS CR EDITED OR PAID WITH THE EXPRESSION PAYABLE IN THE FINAL EN ACTMENT. COMPARISON BETWEEN THE PRE-AMENDMENT AND POST AMENDMENT LAW IS PERMISSIBLE FOR THE PURPOSE OF ASC ERTAINING THE MISCHIEF SOUGHT TO BE REMEDIED OR THE OBJECT SO UGHT TO BE ACHIEVED BY AN AMENDMENT. THIS IS PRECISELY WHAT W AS DONE BY THE APEX COURT IN THE CASE OF CIT VS. KELVINATOR REPORTED IN 12 ITA NO. 63&64M 83-85&7-72/COCH/2014 2010(2) SCC 723. BUT THE SAME COMPARISON BETWEEN T HE DRAFT AND THE ENACTED LAW IS NOT PERMISSIBLE. NOR CAN THE DRAFT OR THE BILL BE USED FOR THE PURPOSE OF REGULATING T HE MEANING AND PURPORT OF THE ENACTED LAW. IT IS THE FINALLY ENACTED LAW WHICH IS THE WILL OF THE LEGISLATURE. THE LEARNED TRIBUNAL FELL INTO AN ERROR IN NOT REA LIZING THIS ASPECT OF THE MATTER. THE LEARNED TRIBUNAL HELD THAT WHERE LANGUAGE IS CLEAR THE INTENTION OF THE LEGISLATURE IS TO BE GATHERED FROM THE LANGUAGE USED. HAVING HELD SO, IT WAS NOT OPEN TO SEEK TO INTERPRET THE SECTION ON THE BASIS OF ANY COMPARISO N BETWEEN THE DRAFT AND THE SECTION ACTUALLY ENACTED NOR WAS IT OPEN TO SPECULATE AS TO THE EFFECT OF THE SO-CALLED REPRESE NTATIONS MADE BY THE PROFESSIONAL BODIES. THE LEARNED TRIBUNAL HELD THAT SECTION 40(A)(IA) OF THE ACT CREATES A LEGAL FICTION BY VIRTUE OF WHICH EVEN THE GENUINE AND ADMISSIBLE EXPENSES CLAIMED BY AN ASSESSEE UNDE R THE HEAD INCOME FROM BUSINESS AND PROFESSION: IF THE ASSESSEE DOES NOT DEDUCT TDS ON SUCH EXPENSES ARE DISALLOWED . HAVING HELD SO WAS IT OPEN TO THE TRIBUNAL TO SEEK TO JUSTIFY THAT THIS FICTION CANNOT BE EXTENDED ANY F URTHER AND, THEREFORE, CANNOT BE INVOKED BY ASSESSING OFFICER T O DISALLOW THE GENUINE AND REASONABLE EXPENDITURE ON THE AMOUN TS OF EXPENDITURE ALREADY PAID? DOES THIS NOT AMOUNT TO DELIBERATELY READING SOMETHING IN THE LAW WHICH IS NOT THERE? WE, AS SUCH, HAVE NO DOUBT IN OUR MIND THAT THE LEARNED TRIBUNAL REALIZED THE MEANING AND PURPORT O F SECTION 40(A)(IA) CORRECTLY WHEN IT HELD THAT IN CASE OF OM ISSION TO DEDUCT TAX EVEN THE GENUINE AND ADMISSIBLE EXPENSES ARE TO 13 ITA NO. 63&64M 83-85&7-72/COCH/2014 BE DISALLOWED. BUT THEY SOUGHT TO REMOVE THE RIGOU R OF THE LAW BY HOLDING THAT THE DISALLOWANCE SHALL BE RESTRICTE D TO THE MONEY WHICH IS YET TO BE PAID. WHAT THE TRIBUNAL B Y MAJORITY DID WAS TO SUPPLY THE CASUS OMISSUS WHICH WAS NOT PERMISSIBLE AND COULD ONLY HAVE BEEN DONE BY THE SU PREME COURT IN AN APPROPRIATE CASE. REFERENCE IN THIS RE GARD MAY BE MADE TO THE JUDGMENT IN THE CASE OF BHUWALKA STEEL INDUSTRIES VS. BOMBAY IRON & STEEL LABOUR BOARD REPORTED IN 20 10(2) SCC 273. UNPROTECTED WORKER WAS FINALLY DEFINED IN SECTIO N 2(11) OF THE MATHADI ACT AS FOLLOWS:- UNPROTECTED WORKER MEANS A MANUAL WORKER WHO IS ENGAGED OR TO BE ENGAGED IN ANY SCHEDULED EMPLOYMEN T. THE CONTENTION RAISED WITH REFERENCE TO WHAT WAS T HERE IN THE BILL WAS REJECTED BY THE SUPREME COURT BY HO LDING AS FOLLOWS: IT MUST, AT THIS JUNCTURE, BE NOTED THAT IN SPITE OF SECTION 2(11), WHICH INCLUDED THE WORDS BUT FOR TH E PROVISIONS OF THIS ACT IS NOT ADEQUATELY PROTECTED BY LEGISLAT ION FOR WELFARE AND BENEFITS OF THE LABOUR FORCE IN THE STATE, THE SE PRECISE WORDS WERE REMOVED BY THE LEGISLATURE AND THE DEFIN ITION WAS MADE LIMITED AS IT HAS BEEN FINALLY LEGISLATED UPON . IT IS TO BE NOTED THAT WHEN THE BILL CAME TO BE PASSED AND RECE IVED THE ASSENT OF THE VICE-PRESIDENT ON 05-06-1969 AND WAS FIRST PUBLISHED IN THE MAHARASHTRA GOVERNMENT GAZETTE EXTRAORDINARY, PART IV ON 13-06-1969, THE AFOREMENT IONED WORDS WERE OMITTED. THEREFORE, T HIS WOULD BE A CL EAR POINTER TO THE LEGISLATIVE INTENT THAT THE LEGISLATURE BEIN G CONSCIOUS OF THE FACT AND BEING ARMED WITH ALL THE COMMITTEE REP ORTS AND 14 ITA NO. 63&64M 83-85&7-72/COCH/2014 ALSO BEING ARMED WITH THE FACTUAL DATA, DELIBERATEL Y AVOIDED THOSE WORDS. WHAT THE APPELLANTS ARE ASKING WAS TO READ IN THAT DEFINITION, THESE PRECISE WORDS, WHICH WERE CO NSCIOUSLY AND DELIBERATELY OMITTED FROM THE DEFINITION. THAT WOULD AMOUNT TO SUPPLYING THE CASUS OMISSUS AND WE DO NOT THINK THAT IT IS POSSIBLE, PARTICULARLY, IN THIS CASE. T HE LAW OF SUPPLYING THE CASUS OMISSUS BY THE COURTS IS EXTREM ELY CLEAR AND SETTLED THAT THOUGH THIS COURT MAY SUPPLY THE C ASUS OMISSUS, IT WOULD BE IN THE RAREST OF THE RATE CASE AND THUS SUPPLYING OF THIS CASUS OMISSUS WOULD BE EXTREMELY NECESSARY DUE TO THE INADVERTENT OMISSION ON THE PA RT OF THE LEGISLATURE. BUT, THAT IS CERTAINLY NOT THE CASE H ERE. WE SHALL NOW ENDEAVOUR TO SHOW THAT NO OTHER INTERPRETATION IS POSSIBLE. THE KEY WORDS USED IN SECTION 40(A)(IA), ACCORDING TO US, ARE ON WHICH TAX IS DEDUCTIBLE AT SOURCE UNDER CHAPTER XVII-B. IF THE QUESTION IS WHICH EXPENSES ARE SO UGHT TO BE DISALLOWED? THE ANSWER IS BOUND TO BE THOSE EXPEN SES ON WHICH TAX IS DEDUCTIBLE AT SOURCE UNDER CHAPTER XVI I-B. ONCE THIS IS REALIZED NOTHING TURNS ON THE BASIS OF THE FACT THAT THE LEGISLATURE USED THE WORD PAYABLE AND NOT PAID O R CREDITED. UNLESS ANY AMOUNT IS PAYABLE, IT CAN NEITHER BE PAI D NOR CREDITED. IF N AMOUNT HAS NEITHER BEEN PAID NOR CR EDITED, THERE CAN BE NO OCCASION FOR CLAIMING ANY DEDUCTION. THE LANGUAGE USED IN THE DRAFT WAS UNCLEAR AND SUSCEPTIBLE TO GIVING MORE THAN ONE MEANING. BY LO OKING AT THE DRAFT IT COULD BE SAID THAT THE LEGISLATURE WAN TED TO TREAT THE PAYMENTS MADE OR CREDITED IN FAVOUR OF A CONTRACTOR OF SUB- CONTRACTOR DIFFERENTLY THAN THE PAYMENTS ON ACCOUNT OF INTEREST, 15 ITA NO. 63&64M 83-85&7-72/COCH/2014 COMMISSION OR BROKERAGE, FEES FOR PROFESSIONAL SERV ICES OR FEES FOR TECHNICAL SERVICES BECAUSE THE WORDS MOUN TS CREDITED OR PAID WERE USED ONLY IN RELATION TO A C ONTRACTOR OF SUB-CONTRACTOR. THIS DIFFERENTIAL TREATMENT WAS NO T INTENDED. THEREFORE, THE LEGISLATURE PROVIDED THAT THE AMOUNT S, ON WHICH TAX IS DEDUCTIBLE AT SOURCE UNDER XVII-B PAYABLE O N ACCOUNT OF INTEREST, COMMISSION OR BROKERAGE, RENT, ROYALTY , FEES FOR PROFESSIONAL SERVICES OR FEES FOR TECHNICAL SERVICE S OR TO A CONTRACTOR OF SUB-CONTRACTOR SHALL NOT BE DEDUCTED IN COM PUTTING THE INCOME OF AN ASSESSEE IN CASE HE HAS NO T DEDUCTED, OR AFTER DEDUCTION HAS NOT PAID WITHIN TH E SPECIFIED TIME. THE LANGUAGE USED BY THE LEGISLATURE IN THE FINALLY ENACTED LAW IS CLEAR AND UNAMBIGUOUS WHEREAS THE LA NGUAGE USED IN THE BILL WAS AMBIGUOUS. A FEW WORDS ARE NOW NECESSARY TO DEAL WITH THE SUBMISSION OF MR. BAGCHI AND MS. ROYCHOWDHURI. THE RE CAN BE NO DENIAL THAT THE PROVISION IN QUESTION IS HARS H. BUT THAT IS NO GROUND TO READ THE SAME IN A MANNER WHICH WAS NO T INTENDED BY THE LEGISLATURE. THIS IS OUR ANSWER TO THE SUBMISSION OF MR. BAGCHI. THE SUBMISSION OF MR. ROYCHOWDHURI THAT THE SECOND PROVISO SOUGHT TO BECO ME EFFECTIVE FROM 1 ST APRIL, 2013 SHOULD BE HELD TO HAVE ALREADY BECOME OPERATIVE PRIOR TO THE APPOINTED DATE CANNOT ALSO BE ACCEDED TO FOR THE SAME REASON INDICATED ABOVE. TH E LAW WAS DELIBERATELY MADE HARSH TO SECURE COMPLIANCE OF THE PROVISIONS REQUIRING DEDUCTIONS OF TAX AT SOURCE. IT IS NOT THE CASE OF AN INADVERTENT ERROR. 16 ITA NO. 63&64M 83-85&7-72/COCH/2014 FOR THE REASONS DISCUSSED ABOVE, WE ARE OF THE OPI NION THAT THE MAJORITY VIEWS EXPRESSED IN THE CASE OF MERILYN SHIPPING & TRANSPORTS ARE NOT ACCEPTABLE. THE SUBMISSIONS ADV ANCED BY LEARNED ADVOCATES HAVE ALREADY BEEN DEALT WITH AND REJECTED. GUJARAT HIGH COURT IN SIKANDARKHAN N TUNVAR(SUPRA) 23. DESPITE THIS NARROW INTERPRETATION OF SECTION 40(A)(IA), THE QUESTION STILL SURVIVES IF THE TRIBUNAL IN CASE OF M/S MERILYN SHIPPING & TRANSPORS VS. ACIT (SUPRA) WAS ACCURATE IN ITS OPINION. IN THIS CONTEXT, WE WOULD LIKE TO EXAMINE TWO ASPECTS. FIRSTLY, WHAT WOULD BE THE CO RRECT INTERPRETATION OF THE SAID PROVISION. SECONDLY, WH ETHER OUR SUCH UNDERSTANDING OF THE LANGUAGE USED BY THE LEGI SLATURE SHOULD WAVER ON THE PREMISE THAT AS PROPOUNDED BY T HE TRIBUNAL, THIS WAS A CASE OF CONSCIOUS OMISSION ON THE PART OF THE PARLIAMENT. BOTH THESE ASPECTS WE WOULD ADDRES S ONE AFTER ANOTHER. IF ONE LOOKS CLOSELY TO THE PROVISI ON, IN QUESTION, ADVERSE CONSEQUENCES OF NOT BEING ABLE TO CLAIM DED UCTION ON CERTAIN PAYMENTS IRRESPECTIVE OF THE PROVISIONS CON TAINED IN SECTIONS 30 TO 38 OF THE ACT WOULD FLOW IF THE FOLL OWING REQUIREMENTS ARE SATISFIED:- (A) THERE IS INTEREST, COMMISSION OR BROKERAGE, REN T, ROYALTY, FEES FOR PROFESSIONAL SERVICES OR FEES FOR TECHNICA L SERVICES PAYABLE TO RESIDENT OR AMOUNTS PAYABLE TO A CONTRAC TOR OR SUB-CONTRACTOR BEING RESIDENT FOR CARRYING OUT ANY WORK. (B) THESE AMOUNTS ARE SUCH ON WHICH TAX IS DEDUCTIB LE AT SOURCE UNDER XVIII-B. 17 ITA NO. 63&64M 83-85&7-72/COCH/2014 (C) SUCH TAX HAS NOT BEEN DEDUCTED OR AFTER DEDUCTI ON HAS NOT BEEN PAID ON OR BEFORE DUE DATE SPECIFIED IN SUB-SE CTION (1) OF SECTION 39. FOR THE PURPOSE OF CURRENT DISCUSSION REFERENCE TO THE PROVISO IS NOT NECESSARY. 24. WHAT THIS SUB-SECTION, THEREFORE, REQUIRES IS T HAT THERE SHOULD BE AN AMOUNT PAYABLE IN THE NATURE DESCRIBED ABOVE, WHICH IS SUCH ON WHICH TAX IS DEDUCTIBLE AT SOURCE UNDER CHAPTER XVII-B BUT SUCH TAX HAS NOT BEEN DEDUCTED O R IF DEDUCTED NOT PAID BEFORE THE DUE DATE. THIS PROVIS ION NOWHERE REQUIRES THAT THE AMOUNT WHICH IS PAYABLE M UST REMAIN SO PAYABLE THROUGHOUT DURING THE YEAR. TO R EITERATE THE PROVISION HAS CERTAIN STRICT AND STRINGENT REQU IREMENTS BEFORE THE UNPLEASANT CONSEQUENCES ENVISAGED THEREI N CAN BE APPLIED. WE ARE PREPARED TO AND WE ARE DUTY BOU ND TO INTERPRET SUCH REQUIREMENTS STRICTLY. SUCH REQUIRE MENTS, HOWEVER, CANNOT BE ENLARGED BY ANY ADDITION OR SUBT RACTION OF WORDS NOT USED BY THE LEGISLATURE. THE TERM USED I S INTEREST, COMMISSION, BROKERAGE ETC. IS PAYABLE TO A RESIDENT OR AMOUNTS PAYABLE TO A CONTRACTOR OR SUB-CONTRACTOR F OR CARRYING OUT ANY WORK. THE LANGUAGE USED IS NOT THAT SUCH A MOUNT MUST CONTINUE TO REMAIN PAYABLE TILL THE END OF THE ACCOUNTING YEAR. ANY SUCH INTERPRETATION WOULD REQUIRE READIN G WORDS WHICH THE LEGISLATURE HAS NOT USED. NO SUCH INTERP RETATION WOULD EVEN OTHERWISE BE JUSTIFIED BECAUSE IN OUR OP INION, THE LEGISLATURE COULD NOT HAVE INTENDED TO BRING ABOUT ANY SUCH DISTINCTION NOR THE LANGUAGE USED IN THE SECTION BR INGS ABOUT ANY SUCH MEANING. IF THE INTERPRETATION S ADVANCED BY THE ASSESSEES IS ACCEPTED, IT WOULD LEAD TO A SITUATION WHERE THE 18 ITA NO. 63&64M 83-85&7-72/COCH/2014 ASSESSEE THOUGH WAS REQUIRED TO DEDUCT THE TAX AT S OURCE BUT NO SUCH DEDUCTION WAS MADE OR MORE FLAGRANTLY DEDUC TION THOUGH MADE IS NOT PAID TO THE GOVERNMENT, WOULD ES CAPE THE CONSEQUENCE ONLY BECAUSE THE AMOUNT WAS ALREADY PAI D OVER BEFORE THE END OF THE YEAR IN CONTRAST TO ANOTHER A SSESSEE WHO WOULD OTHERWISE BE IN SIMILAR SITUATION BUT IN WHOSE CASE THE AMOUNT REMAINED PAYABLE TILL THE END OF THE YEA R. WE SIMPLY DO NOT SEE ANY LOGIC WHY THE LEGISLATURE WOU LD HAVE DESIRED TO BRING ABOUT SUCH IRRECONCILABLE AND DIVE RSE CONSEQUENCES. WE HASTEN TO ADD THAT THIS IS NOT TH E PRIME BASIS ON WHICH WE HAVE ADOPTED THE INTERPRETATION W HICH WE HAVE GIVEN. IF THE LANGUAGE USED BY THE PARLIAMENT CONVEYED SUCH A MEANING, WE WOULD NOT HAVE HESITATED IN ADOP TING SUCH AN INTERPRETATION. WE ONLY HIGHLIGHT THT WE W OULD NOT READILY ACCEPT THAT THE LEGISLATURE DESIRED TO BRIN G ABOUT AN INCONGRUOUS AND SEEMINGLY IRRECONCILABLE CONSEQUENC ES. THE DECISION OF HE SUPREME COURT IN THE CASE OF COMMISSIONER OF INCOME-TAX, GUJARAT VS. ASHOKBHAI CHIMANBHAI (SUPRA), WOULD NO6T ALTER THIS SITUATION. THE SAID DECISION , OF COURSE, RECOGNIZES THE CONCEPT OF ASCERTAINING THE PROFIT A ND LOSS FROM THE BUSINESS OR PROFESSION WITH REFERENCE TO A CERT AIN PERIOD I.E. THE ACCOUNTING YEAR. IN THIS CONTEXT, LAST DA TE OF SUCH ACCOUNTING PERIOD WOULD ASSUME CONSIDERABLE SIGNIFI CANCE. HOWEVER, THIS DECISION NOWHERE INDICATES THAT THE E VENTS WHICH TAKE PLACE DURING THE ACCOUNTING PERIOD SHOUL D BE IGNORED AND THE ASCERTAINMENT OF FULFILLING A CERTA IN CONDITION PROVIDED UNDER THE STATUTE MUST BE JUDGED WITH REFE RENCE TO LAST DATE OF THE ACCOUNTING PERIOD. PARTICULARLY, IN THE CONTEXT OF REQUIREMENTS F SECTION 40(A)(IA) OF THE ACT, WE SEE NO 19 ITA NO. 63&64M 83-85&7-72/COCH/2014 WARRANT IN THE SAID DECISION OF THE SUPREME COURT T O APPLY THE TEST OF PAYABILITY ONLY AS ON 31 ST MARCH OF THE YEAR UNDER CONSIDERATION. MERELY BECAUSE, ACCOUNTS ARE CLOSED ON THAT DATE AND THE COMPUTATION OF PROFIT AND LOSS IS TO B E JUDGED WITH REFERENCE TO SUCH DATE, DOES NOT MEAN THAT WHE THER AN AMOUNT IS PAYABLE OR NOT MUST BE ASCERTAINED ON THE STRENGTH OF THE POSITION EMERGING ON 31T MARCH. 25. THIS BRINGS US TO THE SECOND ASPECT OF THIS DIS CUSSION, NAMELY, WHETHER THIS IS A CASE OF CONSCIOUS OMISSIO N AND THEREFORE, THE LEGISLATURE MUST BE SEEN TO HAVE DEL IBERATELY BROUGHT ABOUT A CERTAIN SITUATION WHICH DOES NOT RE QUIRE ANY FURTHER INTERPRETATION. THIS IS THE FUNDAMENTAL AR GUMENT OF THE TRIBUNAL IN THE CASE OF M/S MERILYN SHIPPING & TRANSPORTS VS. ACIT (SUPRA) TO ADOPT A PARTICULAR VIEW. 26. WHILE INTERPRETING A STATUTORY PROVISION THE CO URTS HAVE OFTEN APPLIED HYDENS RULE OR THE MISCHIEF RULE AND ASCERTAINED WHAT WAS THE POSITION BEFORE THE AMENDMENT, WHAT TH E AMENDMENT SOUGHT TO REMEDY AND WHAT WAS THE EFFECT OF THE CHANGES. 27 TO 36.. 37. IN OUR OPINION, THE TRIBUNAL COMMITTED AN ERROR IN APPLYING THE PRINCIPLE OF CONSCIOUS OMISSION IN THE PRESENT CASE. FIRSTLY, AS ALREADY OBSERVED, WE HAVE SERIOU S DOUBT WHETHER SUCH PRINCIPLE CAN BE APPLIED BY COMPARING THE DRAFT PRESENTED IN PARLIAMENT AND ULTIMATE LEGISLATION WH ICH MAY BE PASSED. SECONDLY, THE STATUTORY PROVISIONS IS AMPL Y CLEAR. 38. IN THE RESULT, W ARE OF THE OPINION THAT SECTIO N 40(A)(IA) WOULD COVER NOT ONLY TO THE AMOUNTS WHICH ARE PAYAB LE AS ON 20 ITA NO. 63&64M 83-85&7-72/COCH/2014 31 ST MARCH OF A PARTICULAR YEAR BUT ALSO WHICH ARE PAYA BLE AT ANY TIME DURING THE YEAR. OF COURSE, AS LONG AS TH E OTHER REQUIREMENT OF THE SAID PROVISION EXIST. IN THAT C ONTEXT, IN OUR OPINION THE DECISION OF THE SPECIAL BENCH OF THE TR IBUNAL IN THE CASE OF M/S MERILYN SHIPPING & TRANSPORTS VS ACIT (SUPRA), DOES NOT LAY DOWN CORRECT LAW. 14. BY FOLLOWING THE JUDGMENTS OF THE CALCUTTA HIGH COURT IN CRESCENT EXPORT SYNDICATE (SUPRA) AND THE GUJARAT HIGH COURT IN SIKANDARKHAN N TUNVAR (SUPRA), THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE DECISION OF THE SPECIAL BENCH OF THIS TRIBUNAL IN THE CASE O F M/S MERILYN SHIPPING & TRANSPORTS (SUPRA) AND THE JUDGMENT OF THE ALLAHABA D HIGH COURT IN VECTOR SHIPPING SERVICES (P) LTD (SUPRA) ARE NOT APPLICABL E TO THE FACTS OF THE CASE UNDER CONSIDERATION WHEREAS THE JUDGMENTS OF T HE CALCUTTA HIGH COURT IN CRESCENT EXPORT SYNDICATE (SUPRA) AND THE GUJARAT HIGH COURT IN SIKANDARKHAN N TUNVAR (SUPRA) ARE SQUARELY APPLICAB LE TO THE FACTS OF THE CASE. RESPECTFULLY FOLLOWING THE JUDGMENTS OF THE CALCUTTA HIGH COURT IN CRESCENT EXPORT SYNDICATE (SUPRA) AND THE GUJARAT H IGH COURT IN SIKANDARKHAN N TUNVAR (SUPRA), WE DO NOT SEE ANY IN FIRMITY IN THE ORDERS OF THE LOWER AUTHORITIES. ACCORDINGLY, THE ORDERS OF THE LOWER AUTHORITIES ARE CONFIRMED. 15. IN THE RESULT, THE APPEALS FILED BY THE ASSESSE ES ARE DISMISSED. 21 ITA NO. 63&64M 83-85&7-72/COCH/2014 ORDER PRONOUNCED IN THE OPEN COURT ON THIS 28 TH AUGUST, 2014. SD/- SD/- (CHANDRA POOJARI) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 28 TH AUGUST, 2014 PK/- COPY TO: 1. THOMAS MUTHOOT / THOMAS JOHN MUTHOOT / THOMAS GE ORGE MUTHOOT, MUTHOOT HOUSE, KOZHENCHERRY 2. ACIT, CIR.1(1), THIRUVALLA 3. THE COMMISSIONER OF INCOME-TAX, THIRUVALLA 4. THE COMMISSIONER OF INCOME-TAX(A), TRIVANDRUM 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH