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TMI Blog2013 (7) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... sus Commissioner of Income Tax & Anr. [2010 (9) TMI 7 - SUPREME COURT OF INDIA] - Decided in favour of assessee. - Tax Case (Appeal) Nos.361 to 370, 372 to 389 of 2012 and 223 to 250 of 2013 & connected M.Ps. & W.P.SR.No.29318 of 2013 - - - Dated:- 17-6-2013 - Chitra Venkataraman And K. B. K. Vasuki,JJ. For the Appellants : Mr. Arvind P.Datar, S. C. M/s. Subbaraya Aiyar Padmanabhan and for M/s.M. V. Swaroop For the Respondent : Mr. T. Ravikumar Standing Counsel for Income Tax JUDGMENT This batch of Tax Case (Appeals), filed at the instance of the assessee as against the common order of the Income Tax Appellate Tribunal, were admitted by this Court on the following substantial questions of law: T.C.(A)Nos.361 to 370 372 to 389 of 2012: "1. Whether, on the facts and circumstances of the case, the ITAT has exercised its power of remand judiciously and in accordance with law? 2. Whether, on the facts and circumstances of the case, the ITAT was right in law in remanding the matters back to the file of the AO even when no new materials had been presented before it and all materials were placed before the lower authorities? 3. Whether, on the facts and circums ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Premium Reserve as income. In the appeals pertaining to M/s.Cholamandalam MS General Insurance Company Ltd., these two issues alone arose. However, in the case of M/s.Royal Sundaram Alliance Insurance Company Limited, apart from the above issues, there were issues like disallowance of depreciation, unexplained expenditure, unexplained investment, profit on sale of investment, etc. In the case of United India Insurance Company, there were other grounds also raised on the disallowance made under Section 40(a)(i) of the Income Tax Act. 4. After referring to the decision of the Supreme Court in the case of GE India Technology Centre Private Limited V. Commissioner of Income-tax in Civil Appeal Nos.7541-7542 of 2010 dated 9.9.2010, wherein the Apex Court had considered the liability as regards the remittance to the non-resident by an Indian Company, the Tribunal held that the issue as regards the payment of reinsurance premium to non-resident reinsurance companies and TDS to be made and particularly, the issue on the place of permanent establishment are all questions that have to be considered by the Assessing Officer based on DTAA. The Assessing Officer disallowed the claim under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessees had sought for was not rectification of any mistake, but an order to change the view taken by the Tribunal, which is more in the nature of review. Hence, there being no mistake apparent on the face of record, all the Miscellaneous Petitions filed by the assesses were dismissed. 8. As regards the Revenue's Miscellaneous Petitions, the Tribunal held that it had already disposed of the appeals remitting the matter back to the Assessing Officer. It further observed "The files have been remitted back to the Assessing Officers not for the reason that the materials are not available on record. The common order of the Tribunal speaks the grounds on which the matters were remanded back. Now, the Revenue cannot request the Tribunal to dispose of the appeals in a particular manner. These miscellaneous petitions filed by the Revenue are frivolous. They are dismissed." 9. Evidently, the Revenue had not filed any appeal before this Court as against this order directing remand of the assessment. 10. As far as the second order dismissing the Miscellaneous Petitions is concerned, the M/s.United India Insurance Company Limited is stated to have filed Writ Petitions before this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment order. We found that the Tribunal had failed to exercise its jurisdiction in the manner known to law. It is one thing to say that the documents were not there before the Assessing Officer, yet, the Officer did not bestow his attention and arrived at a wrong conclusion, which may warrant, at times a remand. However, when materials, which were considered by the Officer are there before the Tribunal on the issue raised, even assuming for a moment that in the course of pendency of the appeals, amendments are effected retrospectively, touching on the very same issue in the context of the amendment provision, however, does not call for any remand, particularly for the reason that the Tribunal with all its wisdom is competent to go into the legal provision, which would govern the issue. 15. On the admitted fact that the materials produced are not new and the applicability of the amended provision does not require further probing of facts, we reject the contention of the learned standing counsel appearing for the Revenue that in the light of the amended provision under Section 9 of the Income Tax Act, the remand is called for. The entire issue rests on the understanding o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of the retrospective amendment to Section 9 of the Income Tax Act after the Vodafone Case to the facts of the case. Thus taking note of the submissions of the learned senior counsel appearing for the assessees and the learned standing counsel appearing for the Revenue, particularly on the amendment to the Act consequent on the Vodafone case, we direct the Income Tax Appellate Tribunal to consider the case of the assessees afresh on the materials placed and the effect of the amended provision on the assessees' cases. It is open to the assessees to file such additional grounds on the points of law before the Tribunal for a full-fledged hearing on the issues raised. 19. Even though the Revenue had not filed appeals as against the remand order, yet, considering the appeals filed by the assessees questioning the remand even in respect of the issues raised in the Revenue's appeals, we direct the entirety of the issues covered by the Revenue's appeals as well as assessees' appeals, be considered by the Tribunal in accordance with law. The orders of the Tribunal, consequently are set aside and the matters are restored to the files of the Income Tax Appellate Tribunal. 20. All the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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