Appeal Details
Counselvise Citation
[2013] 124 COUNSELVISE.COM (IT) 0229 (ITAT-COCHIN)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 month(s) 25 day(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
24-05-2013
Appeal Filed By
Assessee
Bench Allotted
DB
Assessment Year
2003-2004
Appeal Filed On
01-03-2013
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI N.R.S.GANESAN, JM AND B.R.BASKAR AN, AM M.P. NOS. 32-35/COCH/2013 (ARSG. OUT OF I.T.A. NOS. 411 TO 413 /COCH/2007) ASSESSMENT YEAR : 2002-03-2005-2006 M/S. OMAN & UAE EXCHANGE CENTRE & CO. LCC, KOCHI. [PAN: AAACU 4555D] VS. THE DEPUTY COMMISSIONER OF INCOME TAX (INTL.TAXATION), KOCHI (ASSESSEE -APPELLANT) (REVENUE-R ESPONDENT) ASSESSEE BY SHRI VIVEK C. GOVIND, CA REVENUE BY SMT. SUSAN GEORGE VARGHESE, SR. DR DATE OF HEARING 12/04/2013 DATE OF PRONOUNCEMENT 24/05/2013 O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: ALL THESE MISCELLANEOUS PETITIONS HAVE BEEN FI LED BY THE RESPECTIVE ASSESSEES SEEKING RECTIFICATION OF THE COMMON ORDER DATED 25-05-2012 PASSED BY THIS BENCH ON THE GROUND THAT THE TRIBUNAL HAS COMMITTED AN ERROR IN FOLLOWING THE DECISION RENDERED BY THE CO-ORDINATE BENCH OF THE TRIBUNAL DATED 30-03-2 010 ON ACADEMIC INTEREST, INSTEAD OF FOLLOWING THE OPERATIVE PART OF THE ORDER. 2. WE HAVE HEARD THE PARTIES ON THESE PETITIONS. W E NOTICE THAT THE SOLITARY ISSUE RAISED IN THE APPEALS WAS WHETHER THE LD. CIT(A) WA S JUSTIFIED IN HOLDING THAT THE GROSS TOTAL INCOME IS TO BE COMPUTED AT THE RATE OF 110% OF THE EXPENSES INCURRED BY THESE ASSESSEES. THE TRIBUNAL, BY FOLLOWING THE ORDER DAT ED 30-03-2010 PASSED BY THE CO- M.P. NOS. 32-35/COCH/2013 2 ORDINATE BENCH IN I.T.A. NOS. 461 TO 467/COCH/2006 AND OTHERS FOR THE EARLIER YEARS ON IDENTICAL ISSUE, UPHELD THE ORDER OF THE LD. CIT(A) . 3. HOWEVER, NOW IT IS POINTED OUT BY THE LD A.R TH AT THE TRIBUNAL HAS, IN FACT, REMITTED THE MATTER BACK TO THE FILE OF THE ASSESSI NG OFFICER WITH A DIRECTION TO FOLLOW THE DECISION RENDERED BY THE HONBLE DELHI HIGH COU RT IN THE ASSESSEES OWN CASE. IN THIS REGARD THAT LD COUNSEL INVITED OUR ATTENTION T O PARAGRAPH NO.4.3 OF THE ORDER DATED 31.3.2010 PASSED BY THE TRIBUNAL. HE FURTHER SUBMI TTED THAT THE TRIBUNAL, FOR ACADEMIC INTEREST ONLY, CONFIRMED THE ORDER OF THE LD. CIT(A ) IN ESTIMATING THE GROSS INCOME AT 110% OF THE EXPENDITURE. ACCORDINGLY, HE SUBMITTED THAT THE FINDING GIVEN BY THE TRIBUNAL FOR ACADEMIC INTEREST SHOULD NOT HAVE BEEN TAKEN NOTE OF BY THE TRIBUNAL WHILE PASSING THE ORDERS IN THE INSTANT CASES. 4. ON A CAREFUL PERUSAL OF THE ORDER DATED 30-03-20 10 RENDERED BY THE CO-ORDINATE BENCH (REFERRED SUPRA), WE FIND MERIT IN THE CONTEN TIONS RAISED BY THE LD. AR. 5. ACCORDINGLY, WE SUBSTITUTE THE PARAGRAPHS 5 TO 8 OF THE IMPUGNED COMMON ORDER DATED 25-05-2012 WITH THE FOLLOWING PARAGRAPHS. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. WE NOTICE THAT THE CO-ORDINATE BENCH OF THE TRIBUNAL IN THE C ASE OF UAE EXCHANGE CENTRE, M.G. ROAD, ERNAKULAM IN I.T.A. NOS. 461 TO 467/COCH/ 2006 AND OTHERS HAS CONSIDERED AN IDENTICAL ISSUE AND HAS REMITTED THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO FOLLOW THE DE CISION RENDERED BY THE HONBLE DELHI HIGH COURT IN THE ASSESSEES OWN CASE. FOR T HE SAKE OF CONVENIENCE, WE EXTRACT BELOW THE OBSERVATIONS MADE BY THE TRIBUNAL IN THIS REGARD. 4.3 AS REGARDS THE MERITS OF THE CASE, WE FIND THA T IN VIEW OF THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE ASSESSEES O WN CASE (SUPRA) THE ASSESSMENTS, WHICH WE FIND TO HAVE BEEN FRAMED BY I NVOKING THE PROVISIONS OF SECTION 147 OF THE ACT FOR ALL BUT TH E LAST TWO YEARS, WOULD HAVE TO BE MADE BY DELETING THE ENTIRE INCOME ATTRI BUTABLE TO THE SERVICES M.P. NOS. 32-35/COCH/2013 3 PERFORMED IN INDIA IN RELATION TO THE FOREIGN REMIT TANCES. IN FACT, FOR ALL WE KNOW, THE HONBLE COURT MAY HAVE EVEN QUASHED THE A SSESSMENTS, THOUGH THE ASSESSEE HAS NOT STATED SO. HOWEVER, TH E COPY OF ITS ORDER DISPOSING THE ASSESSEES WRIT PETITION BEING NOT ON RECORD WE ARE UNABLE TO ISSUE ANY FINAL DIRECTIONS IN THIS REGARD. THE MATTER SHALL THUS HAVE TO NECESSARILY TRAVEL TO THE ASSESSEE AUTHORITY TO ACT IN COMPLIANCE WITH THE DIRECTIONS OF HONBLE COURT WITH REGARD TO THE ASSE SSMENT OF THE IMPUGNED INCOME DELETING THE SAME ALTOGETHER IF THA T IS WHAT THE HONBLE COURT HAS HELD. FURTHER, WE ARE ALSO CONSCIOUS OF THE FACT THAT THE REVENUE MAY NOT ACCEPT THE SAID ORDER AND MAY CONTE ST THE SAME BEFORE THE APEX COURT. AS SUCH, TO SAFE GUARD THE INTERES T, IT IS ALSO HELD THAT THE IMPUGNED ASSESSMENT(S) WOULD BE SUBJECT TO ANY MODI FICATION IN THE ORDER OF TRH HONBLE DELHI HIGH COURT AS DIRECTED U NDER A DUE PROCESS OF LAW. 5. CONSISTENT WITH THE VIEW TAKEN BY THE CO-ORDINAT E BENCH IN THE CASES CITED ABOVE, WE SET ASIDE THE IMPUGNED ORDERS PASSE D BY LD. CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICE R WITH A DIRECTION TO FOLLOW THE DECISION RENDERED BY THE HONBLE DELHI HIGH COURT I N THE CASE OF U.A.E EXCHANGE CENTRE LTD VS. UOI AND ANR. (W.P (C) NO.14869/2004 DATED 13-02-2009), WHICH WAS REFERRED BY THE CO-ORDINATE BENCH. 6. IN THE RESULT, THE APPEALS FILED BOTH BY THE ASSESSEE AS WELL AS THE REVENUE ARE TREATED AS ALLOWED. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATIONS FI LED BY THE ASSESSEES ARE ALLOWED. PRONOUNCED ACCORDINGLY ON 24-05-20 13. SD/- SD/- (N.R.S.GANESAN) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: KOCHI DATED: 24TH MAY, 2013 GJ COPY TO: 1. M/S. OMAN & UAE EXCHANGE CENTRE & CO. LCC, OPP. M AHARAJAS COLLEGE GROUND, M.G. ROAD, KOCHI-11. M.P. NOS. 32-35/COCH/2013 4 KOCHI. 2. THE DEPUTY COMMISSIONER OF INCOME TAX(INTL. TAXA TION), KOCHI. 3. THE COMMISSIONER OF INCOME-TAX(APPEALS)-III, KOC HI. 4.THE COMMISSIONER OF INCOME-TAX, KOCHI 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR ) I.T.A.T, COCHIN
Mehul