2019 (5) TMI 347 - HC - Income Tax

Substantial question of law - Addition u/s 36(1) - debts actually written off - excluding the income from the Bangkok branch from the total income India- Thailand DTAA - HELD THAT - Both the issues have been remanded back to the Assessing Officer to consider both the issues afresh. Since it is only remand order, we are of the clear opinion that no substantial question of law can be actually said to be arising from the said order of learned Tribunal. The matter is open before the Assessing Officer, who of'course is expected to take a considered view in proper manner after giving due opportunity of hearing to the Assessee. Learned counsels were unable to inform as to whether any order has been passed or not by the Assessing Authority so far pursuant to the remand order passed by the learned Tribunal on 14th December 2007. Thus, we return the aforesaid questions of law unanswered, lest it affects the exercise of discretion by the Assessing Officer.

Summary

Issues:
1. Interpretation of Section 36(1)(vii) of the Act regarding debts written off.
2. Application of Double Taxation Agreement with Thailand on income from Bangkok branch.

Analysis:

Issue 1:
The first issue pertains to the interpretation of Section 36(1)(vii) of the Act regarding debts written off. The Tribunal had previously adjudicated on a similar matter for the Asst. Year 1999-2000, where it was established that debts actually written off not arising from rural advances are not affected by the proviso to clause (vii) of Section 36(1) of the Act. The Tribunal directed the Assessing Officer to reevaluate the issue considering the previous decision. Consequently, the High Court remitted the matter back to the Assessing Officer for fresh consideration based on the Tribunal's directions.

Issue 2:
The second issue involves the application of the Double Taxation Agreement with Thailand on income from the Bangkok branch. Following the precedent set by the Hon'ble Supreme Court in a specific case, the Tribunal confirmed the order of the CIT (Appeals) and directed the Assessing Officer to investigate the existence of the Double Taxation Avoidance Agreement between India and Bangkok. The High Court upheld this decision, setting aside the order of the CIT (Appeals) and remitting the matter to the Assessing Officer for further examination, particularly to verify the location of the Assessee's permanent establishment in India.

In conclusion, the High Court found that no substantial question of law arose from the Tribunal's remand order, as the matters were to be reconsidered by the Assessing Officer. The Court emphasized the importance of the Assessing Officer's proper consideration and provision of a fair hearing to the Assessee. As the Assessing Authority had not yet issued any orders post the Tribunal's remand order, the Court refrained from answering the questions of law to avoid prejudicing the Assessing Officer's discretion. The Tax Case Appeal was disposed of without costs.