TRANS ASIAN SHIPPING SERVICES PVT. LTD. vs. THE COMMISSIONER OF INCOME TAX

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE BASANT BALAJI FRIDAY, THE 18TH DAY OF MARCH 2022/27TH PHALGUNA, 1943 I.T.A. NO.23 OF 2020 (AGAINST THE ORDER DATED 13.08.2018 IN ITA 68/COCH/2017 OF I.T.A.TRIBUNAL, COCHIN BENCH) APPELLANT/APPELLANT/ASSESSEE: M/S.TRANS ASIAN SHIPPING SERVICES PVT. LTD., TRANS ASIA CORPORATE PARK, XIV/396-C, SEAPORT-AIRPORT ROAD, CHETTETHUKARA, KAKKANAD, COCHIN-682 037, REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE MR.WILSON THOMAS. BY ADVS. SRI.A.KUMAR SRI.P.J.ANILKUMAR SMT.G.MINI(1748) SRI.P.S.SREEPRASAD SRI.JOB ABRAHAM SRI.AJAY V.ANAND RESPONDENT/RESPONDENT/REVENUE: THE COMMISSIONER OF INCOME TAX, C.R.BUILDING, I.S.PRESS ROAD, COCHIN-682 018. BY ADVS. SRI.P.K.RAVINDRANATHA MENON (SR.) SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON 18.03.2022, ALONG WITH ITA.25/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

ITA Nos.23 & 25 OF 2020 2 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE BASANT BALAJI FRIDAY, THE 18TH DAY OF MARCH 2022 27TH PHALGUNA, 1943 I.T.A. NO.25 OF 2020 (AGAINST THE ORDER DATED 13.08.2018 IN ITA 69/COCH/2017 OF I.T.A.TRIBUNAL, COCHIN BENCH) APPELLANT/APPELLANT/ASSESSEE: M/S.TRANS ASIAN SHIPPING SERVICES PVT. LTD., TRANS ASIA, CORPORATE PARK, XIV/396-C, SEAPORT-AIRPORT ROAD, CHETTETHUKARA, KAKKANAD, COCHIN 682 037 REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE MR. WILSON THOMAS. BY ADVS. SRI.A.KUMAR SRI.P.J.ANILKUMAR SMT.G.MINI(1748) SRI.P.S.SREEPRASAD SRI.JOB ABRAHAM SRI.AJAY V.ANAND RESPONDENT/RESPONDENT/REVENUE: THE COMMISSIONER OF INCOME TAX, C.R BUILDING, I.S PRESS ROAD, COCHIN 682 018. BY ADVS. SRI.P.K.RAVINDRANATHA MENON (SR.) SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON 18.03.2022, ALONG WITH ITA.23/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

ITA Nos.23 & 25 OF 2020 3 JUDGMENT ------------------ (Dated: 18th March, 2022) S.V.BHATTI, J. The appeals are filed assailing the order dated 13.08.2018. The order under appeal set aside and reversed, the view taken by the Commissioner of Income Tax (Appeals) and remitted the matter to the assessing authority for assessment afresh. A series of contentions have been stated before us by juxtaposing all the three orders relating to the respective assessment years. Pointed out briefly, the complaint in fact against the order of the assessing authority is that no consistency in application of any principle and its findings suffer from patent contradictions. Point relied on from the order of the Commissioner of Income Tax (Appeals) is that, given the nature of assessee's business and the details which are placed in support of T.D.S. claimed, the Commissioner who has power under the Act examined

ITA Nos.23 & 25 OF 2020 4 each one of the circumstances, recorded findings in favour of the assessee, relegated the matter to the assessing authority for carrying out a few of the directions stated therein. The serious ground urged against the order of the Tribunal is that, the order of the Tribunal suffers from too much of brevity and every objection pointed out by the Department is accepted in one sentence, open remand is made to the assessing officer. 2. It is in this background, Mr.A.Kumar contends that, the assessee not only filed the return for the subject years and also placed the Annexures in support of its claim. To the extent of collection and submitting the details before the authorities, the said burden has been discharged in accordance with law. The assessee cannot be expected to verify the details from the data of department in different circles, quoted in his words, 'the Tribunal or Appellate Authority is asking for performance of impossible acts'. The point argued against the order of the Tribunal is that, the Tribunal

ITA Nos.23 & 25 OF 2020 5 even for a limited purpose did not take up any one of the contentions, examined it, recorded a finding that this finding is unavailable. On the contrary, a finding on those lines is recorded by the Commissioner and while setting aside the finding of the Appellate Authority. Under those circumstances, the assessee appreciates open remand. But in the case on hand, what has been done by the assessee is in line with the requirements of law and the trade practice. Without verifying the details at their end, the documents relied on by the assessee are overlooked or disbelieved. Therefore, it is argued that, the remand by the Tribunal is unsustainable. 3. The learned standing counsel, Mr.Jose Joseph does not get into the details of the order of the Commissioner or the Tribunal. His answer to all the objections taken for the assessee is that, the Commissioner did not comply with the requirements of Rule 46(A) of the Income Tax Rules. In effect, the findings against the assessment order are recorded by relying on the documents placed before the Commissioner.

ITA Nos.23 & 25 OF 2020 6 Remand ordered by the Tribunal does not cause prejudice to the assessee. The assessee could prove from the documents already placed before the Commissioner may be at the cost of repetition. The same exercise is undertaken before the primary authority in support of the claim of the dealer on TDS. He invites our attention to Annexure-H order and argues that, the scope of the appeal is whether remand is warranted to the primary authority or not? In the case on hand, the primary authority upon remand, issued notice to the assessee and in the manner the authority has understood, made the assessment order marked as Annexure-H. Interference with the order of the Tribunal cannot in any way upset the legal effect of Annexure-H order, Annexure-H order has to be independently challenged by filing an appeal. We look at the dates, namely, Annexure-H order dated 27.12.2019, the date of filing of the appeal before this court challenging the order of remand is 04.02.2020. After taking note of the rival contentions and appreciating the jurisdictional limitation, the subject

ITA Nos.23 & 25 OF 2020 7 matter of the appeals, in view of the assessment order in Annexure-H, we are satisfied that, the assessee could be relegated to working out the remedy against Annexure- H order by filing an appeal before the Commissioner of Income Tax (Appeals) by enclosing a copy of this judgment, within two months from the receipt of copy of this judgment. All the issues raised in the appeal are examined on their merits and appeal disposed of expeditiously preferably within six months. Pending appeal, particularly having regard to the nature of controversy being agitated by the assessee, we are persuaded to grant stay of recovery of tax pursuant to Annexure-H dated 27.12.2019. Keeping in perspective the arguments of Mr.A. Kumar, we observe that the assessee files the return with Annexure in the manner stipulated by the Act and the Rules, claims TDS adjustment, thereafter, it is for the department to verify the Annexures/details available with them or call for inputs from other office as the case may be. The powers of the Commissioner are co-

ITA Nos.23 & 25 OF 2020 8 extensive with the powers of the assessing authority. In the peculiar circumstances of this case, we are compelled to observe that the Commissioner, can independently examine the material now relied on by the assessee to decide the appeal or call for report from the jurisdictional assessing authority on the material relied on by the assessee and decide the issues. The assessee as well as the primary authority are afforded opportunity, appeal heard and disposed of as indicated above.

Sd/-

S.V.BHATTI, JUDGE

Sd/- BASANT BALAJI, JUDGE ss

ITA Nos.23 & 25 OF 2020 9 APPENDIX OF ITA 23/2020 PETITIONER ANNEXURES ANNEXURE A TRUE COPY OF THE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2012-13 DATED 31.03.2016. ANNEXURE B COPY OF THE RECONCILIATION FILED BEFORE THE ASSESSING AUTHORITY. ANNEXURE C TRUE COPY OF THE MEMORANDUM OF APPEAL FILED BEFORE THE CIT(APPEALS). ANNEXURE D TRUE COPY OF THE ORDER OF CIT (APPEALS) DATED 16.12.9016. ANNEXURE E TRUE COPY OF THE MEMORANDUM OF APPEAL FILED BY THE REVENUE BEFORE THE INCOME TAX APPELLATE TRIBUNAL. ANNEXURE F COPY OF THE SUBMISSIONS ON THE CONTENTIONS IN THE APPEAL (WITHOUT ANNEXED DOCUMENTS RELEVANT PAGES 1-10 & 91-101). ANNEXURE G TRUE COPY OF THE ORDER OF THE INCOME TAX APPELLATE TRIBUNAL DATED 13.08.2018. ANNEXURE H TRUE COPY OF THE ASSESSMENT ORDER DATED 27.12.2019.

ITA Nos.23 & 25 OF 2020 10 APPENDIX OF ITA 25/2020 PETITIONER ANNEXURES ANNEXURE A TRUE COPY OF THE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2013-14 DATED 31-03- 2016 ANNEXURE B COPY OF THE RECONCILIATION FILED BEFORE THE ASSESSING AUTHORITY FIRST 2 PAGES AND LAST 2 PAGES. ANNEXURE C TRUE COPY OF THE MEMORANDUM OF APPEAL FILED BEFORE THE CIT (APPEALS) ANNEXURE D TRUE COPY OF THE ORDER OF CIT (APPEALS) DATED 16/12/2016 ANNEXURE E TRUE COPY OF THE MEMORANDUM OF APPEAL FILED BY THE REVENUE BEFORE THE INCOME TAX APPELLATE TRIBUNAL ANNEXURE F COPY OF THE SUBMISSIONS ON THE CONTENTIONS IN THE APPEAL (WITHOUT ANNEXED DOCUMENTS RELEVANT PAGES 1-12) ANNEXURE G TRUE COPY OF THE ORDER OF THE INCOME TAX APPELLATE TRIBUNAL DATED 13/08/2018 ANNEXURE H TRUE COPY OF THE ASSESSMENT ORDER DATED 27/12/2019