2019 (7) TMI 442 - HC - Income Tax

Non adjudication of grounds by tribunal - Liability of TDS u/s 194C - IUC paid to the other telecom operators - Tribunal remanded to examine that the payees included the amounts received from the assessee in their return of income and paid due taxes - HELD THAT - If a litigant raises a legal issue before a court or a tribunal as a principal ground of challenge and without prejudice and not in derogation with the said plea, the litigant is also entitled to raise alternate submissions. So far as the taxation matters are concerned, the grounds raised by the assessee can, at times, be contradictory and there is no reason to reject the grounds. In any event, the Tribunal ought to have rendered a finding on the grounds raised by the assessee with regard to the applicability of Section 194C on the IUC paid to the other telecom operators. Had the Tribunal considered and rendered a finding that it was not convinced with the submissions made, then, it would have been well justified to proceed to consider the alternate submissions. We find from the impugned order that the Tribunal has not rendered any finding with regard to the contentions advanced by the assessee relating to the applicability of Section 194C. Tribunal remanded the matter to the AO. The Tribunal set aside the orders of the Lower Authorities in their entirety. Thus, if the remand is for a limited purpose, the Tribunal ought to have very well indicated in its order. In our understanding, the remand order passed by the Tribunal is after setting aside the orders passed by the Lower Authorities and necessarily, the AO has to consider the matter afresh in its entirety. Tribunal added a rider after setting aside the orders passed by the Lower Authorities stating that a verification has to be done as to whether the payees included the amounts received from the assessee in their return of income and paid due taxes thereon. In our considered view, the further direction issued by the Tribunal cannot be construed to be restrictive in nature thereby preventing the AO to consider all grounds and more particularly, when the Tribunal has not rendered any finding on the applicability of Section 194C . Hence, we are of the considered view that the order passed by the Tribunal should be and shall be read as an open remand to the AO to consider all the issues that were pleaded by the assessee before the Tribunal. Above tax case appeal is disposed of by clarifying that the AO shall consider all the issues that may be raised by the assessee and take a fresh decision on merits

Summary

Issues involved:
- Appeal under Section 260A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal for the assessment year 2007-08.
- Substantial questions of law raised by the assessee regarding the Tribunal's order, applicability of Section 194C of the Act, and remand to the Assessing Officer.

Analysis:
1. The assessee raised substantial questions of law challenging the Tribunal's order for not adjudicating specific grounds raised in the appeal. The Tribunal remanded the matter to the Assessing Officer without discussing the applicability of Section 194C of the Act on interconnection usage charges (IUC) paid to other telecom operators. The Tribunal's failure to address this issue was noted by the High Court, emphasizing that a litigant is entitled to raise alternate submissions but the primary grounds should not be ignored.

2. The High Court observed that the Tribunal's remand order should be construed as an open remand, allowing the Assessing Officer to consider all issues raised by the assessee. The Tribunal's direction for verification of whether payees included the amounts in their income tax returns was not meant to restrict the consideration of other grounds. The High Court clarified that the Assessing Officer must make a fresh decision on all issues raised by the assessee, uninfluenced by previous orders.

3. The High Court highlighted that the Tribunal's failure to render a finding on the applicability of Section 194C of the Act was a significant omission. The Court emphasized that the remand order should be comprehensive, requiring the Assessing Officer to reconsider the entire matter and make a decision based on all grounds raised by the assessee. The High Court disposed of the appeal, leaving the substantial questions of law open for further consideration.