The Commissioner of Income Tax - 10 vs Onward E-Services Ltd.

We have heard both sides. The Revenue has filed an appeal challenging the order of the Tribunal dated 6th June, 2012, which is pronounced in two Income Tax Appeal Nos. 5283/Mum/2011 and 5354/Mum/2011. The appeals of the Revenue and the assessee pertain to assessment year 2008-09. Mr. Tejveer Singh appearing in support of this appeal submits that the questions at page 4 of the paper-book are substantial questions of law and would arise from the Tribunal''s orders and findings.

In relation to the first Question, our attention was invited to paragraphs 3 to 5 of the Tribunal order and to urge that the Tribunal has not rendered any specific finding, leave alone the conclusion that what the assessee did was permissible in law.

Mr. Tejveer Singh submits that the undisputed fact was that the assessee filed a revised statement of the computation of income during the course of assessment. In such a statement, the assessee claimed deduction of Rs. 42,44,780/- as against Rs. 5,23,458/- claimed in the original statement of total income. The Assessing Officer denied this request and observed that the deduction was not claimed in the original return and, therefore, assessee cannot claim any benefit.

Mr. Tejveer Singh submits that even though this view of the Assessing Officer was not accepted by the Commissioner, yet, the Tribunal did not express any opinion on the Commissioner''s conclusions. Therefore, this question and as proposed at page 4 would arise and it is a substantial question of law.

We are unable to agree with Mr. Tejveer Singh and for more than one reason. The Commissioner has found that this is not a case of any revised return of income being filed. What was proposed to be revised and corrected is the figure or sum in which the deduction under section 40(a)(ia) was claimed. That was in the sum of Rs. 5,23,458/-. That is to be found in the statement of total income for assessment year 2007-08. In the revised statement of total income, a sum of Rs. 47,49,080/- was claimed as deduction. The assessee explained as to why this revision and correction in the figures was made. It was submitted that from the original figure of Rs. 47,49,080/-, the expenses amounting to Rs. 42,44,780/- were disallowed since TDS on the same was not paid within the relevant previous year. That was deposited late. It was paid on 19th May, 2007 and it is, therefore, in a financial year relevant to the assessment year 2008-09. If this was the sum paid and namely Rs. 42,44,780/- during the year under consideration, then, the deduction should be in this sum. The Commissioner found that the approach of the Assessing Officer was entirely incorrect inasmuch as the deduction pertained to assessment year 2007-08 and was claimed on payment basis. The relevant claim was filed because of the amendment made by Finance Act 2008 to section 40(a)(ia) with retrospective effect from 1st April, 2005. The Commissioner found that it is only a revision in the claim and the figures and not to be confused with the revised return of income. The Tribunal found that the Commissioner''s view is supportable and by the judgments rendered by the Hon''ble Allahabad High Court and the Hon''ble High Court of Punjab and Harayana. The Hon''ble Supreme Court''s judgment in the case of Goetze (India) Ltd. Vs. Commissioner of Income Tax, (2006) 204 CTR 182 : (2006) 284 ITR 323 was also referred by the Tribunal. The reasoning therefore, in paragraph 5 of the Tribunal''s order is in consonance with the legal principles. A hypertechnical view being taken by the Assessing Officer that both the Commissioner and the Tribunal concurrently found that the course adopted by the assessee was permissible.

We do not think that any substantial question of law arises from such a possible view and which is taken in the backdrop of the peculiar facts and circumstances. The first question is, therefore, not a substantial question of law.

Insofar as the second question is concerned, it is fairly conceded that the two judgments, one rendered by the Hon''ble Supreme Court in the case of Commissioner of Income Tax Kolkata-III Vs. Alom Extrusions Limited, (2009) 227 CTR 417 : (2009) 319 ITR 306 : (2009) 14 JT 441 : (2009) 14 SCALE 163 : (2010) 1 SCC 489 : (2009) 15 SCR 1154 : (2009) 185 TAXMAN 416 : (2010) AIRSCW 97 : (2009) 8 Supreme 77 and by a Division Bench of this Court to which one of us (S.C. Dharmadhikari, J.) was a party in Income Tax Appeal No. 399 of 2012 Commissioner of Income Tax-4 vs. M/s. Hindustan Organics Chemicals Ltd., decided on 11th July, 2014, concludes the issue. That is concluded against the Revenue and in favour of the assessee.

As a result of the above discussion, both questions are not substantial questions of law and the appeal cannot be entertained. The same is, accordingly, dismissed without any costs.