Income Tax Appellate Tribunal - Chandigarh
R M C Services, Manimajra vs Assessee on 10 September, 2014
IN THE INCOME TAX APPELLATE TRIBUNAL
CHANDIG ARH BENCH ' A', CHANDIG ARH
BEFORE SHRI T.R. SOOD, ACCOUNTANT MEMBER AND
Ms. SUSHMA CHOWLA, JUDICI AL MEMBER
ITA No. 1022/Chd/2013
Assessment Years : 2009-10
R.M.C. Services V A.C.I.T.
SCO 855, First Floor Circle 4(1)
N.A.C Chandigarh
Manimajra
AAJFR 6827 P
(Appellant) (Respondent)
Appellant by: Shri N.K. Saini
Respondent by: Shri Mahavir Singh
Date of hearing 25.8.2014
Date of Pronouncement 10.9.2014
O R D E R
PER T.R. SOOD, A.M
This appeal is directed against the order dated 14.8.2013 of the Ld CIT(A), Chandigarh.
2. In this appeal the assessee has raised the following effective grounds:
"2 The Ld. CIT(A) has erred in upholding the order passed by the Assessing Officer in making disallowance under section 40a(ia) of the Act contrary to the order passed in the case of CIT, Muzaffarnagar V. M/s Vector Shipping Services (P) Ltd. Muzaffarnagar by Hon'ble Allahabad High Court in appeal No. 122 of 2013.
3 The Ld. CIT(A) has grossly erred in law in upholding the order passed by Assessing Officer on account of disallowance of expenses of Rs. 3981510/- u/s 40a(ia) on account of non deduction of tax at source on interest paid to Non banking Financial Institutions during the year where as no interest was "payable" as on 31.3.2009 i.e. as the end of the Financial year.2
4 The Ld. CIT(A) has grossly erred in upholding the order of Assessing Officer on account of disallowance expenses of Rs. 3981510/- under section 40a(ia) on account of non deduction of taxes at Source on interest paid to Non banking Financial Institutions during the year where as assessee has never been deemed to be an assessee in default under the first proviso to sub-section (1) of Sec 201 of the Act."
3 In this case the assessee has filed an application dated nil which has been received by the Office on 21.8.2014 for admission of additional evidence.
4 The Ld. Counsel for the assessee submitted that basically the issue is covered against the assessee by the decision of the Tribunal but the additional evidence is required to be admitted. The additional evidence is only in the form of balance sheet of Reliance Capital Ltd. to show that the said company was doing insurance business. In fact the assessee has made payment to Reliance Capital Ltd. on account of interest for getting finance from the said company. Through this document it can be shown that Reliance Capital Ltd. is an insurance company from which tax is not required to be deducted. However, he could not reply satisfactorily why this additional evidence was not produced before the Assessing Officer or the Ld. CIT(A).
5 On the other hand, the Ld. D.R for the revenue strongly opposed the application and submitted that perusal of assessment itself would show that the amount has been paid to Reliance Capital Ltd. on account of interest which itself shows that the amount was paid towards interest charges and 3 therefore provisions of section 40a(ia) r.w.s. 194A are attracted.
6 After considering the rival submissions we find that additional evidence cannot be admitted unless and until some convincing reason is given to show how the assessee was prevented to furnish this evidence before the Assessing Officer or the Ld. CIT(A). No reason for not submitting the so called evidence before the Assessing Officer or the Ld. CIT(A) was given before us. Therefore we decline to admit additional evidence.
7 The issue raised by the assessee have been recently considered in detail by this Bench of the Tribunal in case of D.C.I.T. V Rana Sugars Ltd. in ITA No. 48/Chd/2011 and Cross objections No. 20/Chd/2011 and the issue was adjudicated vide para No. 28 & 29 which are as under:
"28 W e have considered the rival subm issions caref ully. W e f ind that Hon'ble Gujarat High Court in case of CIT V. Sikandarkhan N. Tunvar & Ors, supra) has held that provisions of section 40a(ia) are applicable where the am ount has been paid or rem ain pa yable. In contrast Hon'ble Allahabad High Court in case of CIT V. Vector Shipping Services (P) Ltd (supra), has followed the decision of Special Bench in case of Merilin Shipping & Transport V Addl CIT, 136 ITD 23 (Visakhapatnam)(SB). Both these decisions were considered by us in case of Hi Tech Foods V ITO (supra) and it was observed at para 22 to 27 as under:
"22 W e have heard the rival submissions carefully and find that the decision of Special Bench has been specifically over ruled by Hon'ble Gujarat High Court by discussing the issue in detail in case of CIT V. Sikandarkhan N Tunwar and others (supra). W e further find that in case of CIT V. Vector Shipping Services, the issue was different. In that case the question posed before the Hon'ble High Court reads as under:
"Whether on the facts and in the circumstances of the case, the Hon'ble ITAT has rightly confirmed the order of the ld. CIT(A) and thereby deleting the disallowance of Rs. 1,17,68,621/- made by the Assessing Officer u/s 40(a)(ia) of the IT Act by ignoring the fact that the company M/s Mercator Lines Ltd. had performed ship management work on behalf of the assessee M/s Vector Shipping Services (P) Ltd and there was a Memorandum of Undertaking 4 signed between both the companies and a s per the definition of memorandum of undertaking, it included contract also."
In that case some expenses were disallowed u/s 40(a)(ia) because not tax was deducted. On appeal the Tribunal found that the ld. CIT(A) has already given a finding that Mercator Lines Ltd. had deducted the TDS on salary paid on behalf of the assessee. under such circumstances the assessee was not required to deduct the TDS on reimbursement on salary being made by it to M/s Mercator Lines Ltd.
23 Hon'ble High Court has confirmed the decision of the Tribunal. Thus it is clear that Hon'ble Allahabad High Court was neither required nor has given detail reasons for approving the decision of Special Bench whereas Hon'ble Gujarat High Court has after detailed discussion, over ruled the decision of Special Bench.
24 In case of Sikandarkhan N Tunwar (supra) the assessee was engaged in the business of transport contractor and commission agent. During the scrutiny assessment it was noticed by the Assessing Officer that expenditure in the nature of paym ent m ade by the assessee to its sub-contractors to the tune of Rs. 8.74 crores. Since the assessee had admittedly not deducted the tax from such paym ents and individual pa ym ents to transporters exceeded limit of Rs. 20,000/- for a single trip and aggregated over Rs. 50,000/- in the year though the assessee had obtained form No. 15-I from such sub-contractors but the same were not furnished along with the particulars in Form 15-J to the CIT before due date and theref ore, the expenditure on account of paym ent to sub-contractors was disallowed by invoking the provisions of section 40(a)(ia) of the Act.
25. On appeal the ld. CIT(A) confirmed this order.
26 W hen the matter traveled to the Tribunal the appeal of the assessee was allowed b y relying on the decision of Merilyn Shipping Transporters V. ACIT (supra). The Tribunal held that the word "payable" used in Section 40(a)()ia) would m ake provision st applicable only in respect of expenditure pa yable on 31 March of a particular yea r and such provision cannot be invoked to disallow the am ounts which has already been paid during the year though the tax may not have been deducted at source. Following specific question was posed before the Hon'ble High Court:
"In all these appeals the Tribunal has followed the decision of the Special Bench in the case of M/s Merilyn Shipping Transporters V. ACIT (supra) and deleted the disallowance on this limited ground. As in the present case, other Merilyn Shipping Transporters V. ACIT (supra) grounds of controversy between the parties with respect to allowability or otherwise of such expenditure was not examined by the Tribunal. For the purpose of these appeals, therefore, we frame following substantial question of law:
"1 Whether disallowance u/s 40(a)(ia) of the I.T Act could be made only in respect of such amounts which are payable as on st 31 Mach of the year under consideration?
2 Whether decision of Special Bench of the Tribunal in the case of M/s Merilyn Shipping Transporters V. ACIT (supra) lays down correct law?"5
27 Hon'ble Gujarat High Court after considering the submissions of both the parties referred to the provision of Chapter XVII A of the Act dealing with the Tax Deduction Provisions. After this reference was made to Section 40(a)(ia) through which it was provided that tax has not been deducted on certain paym ents and the sam e will not be allowable. T he Hon'ble High Court discussed the implementations of this provision and decision of Special Bench in case of Merilyn Shipping Transporters V. ACIT (supra) and observed and held as under:
" 17. In plain terms Section 40(a)(ia) provides that in case of any interest, commission or brokerage, rent, royalty, fees for professional services or fees for technical services payable to a resident, or amounts payable to a contractor or sub-contractor for carrying out any work on which tax is deductible at source and such tax has not been deducted or after deduction has not been paid before the due date, such amounts shall not be deducted in computing the income chargeable under the head Profits and Gains of Business or Profession irrespective of the provisions contained in Sections 30 to 38 of the Act. Proviso to Section 40(a)(ia), however, enables the assessee to take such deduction in subsequent year, if tax is deducted in such year or though deducted during the previous year but paid after the due date specified in sub-Section(1) of Section 139 of the Act.
18. In such context, therefore, the question arises whether under Section 40(a)(ia) of the Act disallowance of the expenditure payment of which, though required deduction of tax at source has not been made would be confined only to those cases where the amount remains payable till the end of the previous year or would include all amounts which became payable during the entire previous year.
19. Decision in the case of M/s. Merilyn Shipping & Transports vs. ACIT (supra) was rendered by the Special Bench by a split opinion. Learned Accountant Member who was in minority, placed heavy reliance on a decision of Madras High Court in the case of Tube Investments of India Ltd. and another vs. Assistant Commissioner of Income- Tax (TDS) and others reported in [2010] 325 ITR 610 (Mad). Learned Judge did notice that the High Court in such case was concerned with the vires of the statutory provision but found some of the observations made by the Court in the process useful and applicable. Learned Judge rejected the theory of narrow interpretation of term payable and observed as under:
12.4 In our considered opinion, there is no ambiguity in the section and term payable cannot be ascribed narrow interpretation as contended by assessee. Had the intentions of the legislature were to disallow only items st outstanding as on 31 March, then the term payable would have been st qualified by the phrase as outstanding on 31 March. However, no such qualification is there in the section and, therefore, the same cannot be read into the section as contended by the assessee.
20. On the other hand, learned Judicial Member speaking for majority adopted a stricter interpretation. Heavy reliance was placed on the Finance Bill of 2004, which included the draft of the amendment in Section 40 and the ultimate amendment which actually was passed by the Parliament. It was observed that from the comparison between the proposed and the enacted provision it can be seen that the legislature has replaced the words amounts credited or paid with the word payable in the enactment. On such basis, it was held that this is a case of conscious omission and when the language was clear the intention of the legislature had to be gathered from language used. In their opinion the provision would apply only to amounts which are payable at the end of the year. Having said so, curiously, it was observed that the proviso to Section 40(a)(ia) of the Act lays down that earlier year s provision can be allowed in subsequent years only if TDS is deducted and deposited and, therefore, Revenue s fear is unfounded as the provision of Section 40(a)(ia) of the Act covers the situation.6
21. In the present case, we have no hesitation in accepting the contention that the provision must be construed strictly. This being a provision which creates an artificial charge on an amount which is otherwise not an income of the assessee, cannot be liberally construed. Undoubtedly if the language of the section is plain, it must be given its true meaning irrespective of the consequences. We have noticed that the provision makes disallowance of an expenditure which has otherwise been incurred and is eligible for deduction, on the ground that though tax was required to be deducted at source it was not deducted or if deducted, had not been deposited before the due date. By any intendment or liberal construction of such provision, the liability cannot be fastened if the plain meaning of the section does not so permit.
22. For the purpose of the said section, we are also of the opinion that the terms payable and paid are not synonymous. Word paid has been defined in Section 43(2) of the Act to mean actually paid or incurred according to the method of accounting, upon the basis of which profits and gains are computed under the head Profits and Gains of Business or Profession . Such definition is applicable for the purpose of Sections 28 to 41 unless the context otherwise requires. In contrast, term payable has not been defined. The word payable has been described in Webster s Third New International Unabridged Dictionary as requiring to be paid: capable of being paid:
specifying payment to a particular payee at a specified time or occasion or any specified manner. In the context of section 40(a)(ia), the word payable would not include paid . In other words, therefore, an amount which is already paid over ceases to be payable and conversely what is payable cannot be one that is already paid. When as rightly pointed out by Counsel Mr. Hemani, the Act uses terms paid and payable at different places in different context differently, for the purpose of Section 40(a)(ia) of the Act, term payable cannot be seen to be including the expression paid . The term paid and payable in the context of Section 40(a)(ia) are not used interchangably. In the case of Birla Cement Works and another vs. State of Rajasthan and another reported in AIR 1994(SC) 2393, the Apex Court observed that the word payable is a descriptive word, which ordinarily means that which must be paid or is due or may be paid but its correct meaning can only be determined if the context in which it is used is kept in view. The word has been frequently understood to mean that which may, can or should be paid and is held equivalent to due .
23. Despite this narrow interpretation of section 40(a)(ia), the question still survives if the Tribunal in case of M/s. Merilyn Shipping & Transports vs. ACIT (supra) was accurate in its opinion. In this context, we would like to examine two aspects. Firstly, what would be the correct interpretation of the said provision. Secondly, whether our such understanding of the language used by the legislature should waver on the premise that as propounded by the Tribunal, this was a case of conscious omission on part of the Parliament. Both these aspects we would address one after another. If one looks closely to the provision, in question, adverse consequences of not being able to claim deduction on certain payments irrespective of the provisions contained in Sections 30 to 38 of the Act would flow if the following requirements are satisfied:-
(a) There is interest, commission or brokerage, rent, royalty, fees for professional services or fees for technical services payable to resident or amounts payable to a contractor or sub-contractor being resident for carrying out any work.
(b) These amounts are such on which tax is deductible at source under Chapter XVII-B.
(c)Such tax has not been deducted or after deduction has not been paid on or before due date specified in sub-Section (1) of Section 39.
For the purpose of current discussion reference to the proviso is not necessary.
24. What this Sub-Section, therefore, requires is that there should be an `amount payable in the nature described above, which is such on which tax is deductible at source under Chapter XVII-B but such tax has not been deducted or if deducted not paid before the due date. This provision no-where requires that the amount which is payable must remain so payable throughout during the year. To reiterate the provision has certain strict and 7 stringent requirements before the unpleasant consequences envisaged therein can be applied. We are prepared to and we are duty bound to interpret such requirements strictly. Such requirements, however, cannot be enlarged by any addition or subtraction of words not used by the legislature. The term used is interest, commission, brokerage etc. is payable to a resident or amounts payable to a contractor or sub-contractor for carrying out any work. The language used is not that such amount must continue to remain payable till the end of the accounting year. Any such interpretation would require reading words which the legislature has not used. No such interpretation would even otherwise be justified because in our opinion, the legislature could not have intended to bring about any such distinction nor the language used in the section brings about any such meaning. If the interpretation as advanced by the assessees is accepted, it would lead to a situation where the assessee who though was required to deduct the tax at source but no such deduction was made or more flagrantly deduction though made is not paid to the Government, would escape the consequence only because the amount was already paid over before the end of the year in contrast to another assessee who would otherwise be in similar situation but in whose case the amount remained payable till the end of the year. We simply do not see any logic why the legislature would have desired to bring about such irreconcilable and diverse consequences. We hasten to add that this is not the prime basis on which we have adopted the interpretation which we have given. If the language used by the Parliament conveyed such a meaning, we would not have hesitated in adopting such an interpretation. We only highlight that we would not readily accept that the legislature desired to bring about an incongruous and seemingly irreconcilable consequences. The decision of the Supreme Court in the case of Commissioner of Income-Tax, Gujarat vs. Ashokbhai Chimanbhai (supra), would not alter this situation. The said decision, of course, recognizes the concept of ascertaining the profit and loss from the business or profession with reference to a certain period i.e. the accounting year. In this context, last date of such accounting period would assume considerable significance. However, this decision nowhere indicates that the events which take place during the accounting period should be ignored and the ascertainment of fulfilling a certain condition provided under the statute must be judged with reference to last date of the accounting period. Particularly, in the context of requirements of Section 40(a)(ia) of the Act, we see no warrant in the said decision of the Supreme Court to apply st the test of payability only as on 31 March of the year under consideration. Merely because, accounts are closed on that date and the computation of profit and loss is to be judged with reference to such date, does not mean that whether an amount is payable or st not must be ascertained on the strength of the position emerging on 31 March.
25. This brings us to the second aspect of this discussion, namely, whether this is a case of conscious omission and therefore, the legislature must be seen to have deliberately brought about a certain situation which does not require any further interpretation. This is the fundamental argument of the Tribunal in the case of M/s. Merilyn Shipping & Transports vs. ACIT(supra) to adopt a particular view.
26. While interpreting a statutory provision the Courts have often applied Hyden s rule or the mischief rule and ascertained what was the position before the amendment, what the amendment sought to remedy and what was the effect of the changes.
27. In the case of Bengal Immunity Co. Ltd. vs. State of Bihar and others reported in AIR 1955 SC 661, the Apex Court referred to the famous english decision in Hyden s case wherein while adopting restrictive or enlarging interpretation, it was observed that four things are to be considered, (1) what was the common law before making of the act (2) what was the mischief and defect in which the common law did not provide. (3) what remedy the Parliament had resolved and adopted to cure the disease and (4) true reason of the remedy.
28. In such context, the position prevailing prior to the amendment introduced in Section 40(a) would certainly be a relevant factor. However, the proceedings in the Parliament, its debates and even the speeches made by the proposer of a bill are ordinarily not considered as relevant or safe tools for interpretation of a statute. In the case of Aswini Kumar Ghose and another vs. Arabinda Bose and another reported in A.I.R. 1952 8 SC 369 in a Constitution Bench decision of (Coram: Patanjali Sastri, C.J.), observed that:-
33. &..It was urged that acceptance or rejection of amendments to a Bill in the course of Parliamentary proceedings forms part of the pre-enactment history of a statute and as such might throw valuable light on the intention of the Legislature when the language used in the statue admitted of more than one construction. We are unable to assent to this preposition.
The reason why a particular amendment was proposed or accepted or rejected is often a matter of controversy, as it happened to be in this case, and without the speeches bearing upon the motion, it cannot be ascertained with any reasonable degree of certainty. And where the Legislature happens to be bicameral, the second Chamber may or may not have known of such reason when it dealt with the measure. We hold accordingly that all the three forms of extrinsic aid sought to be resorted to by the parties in the case mus be excluded from consideration in ascertaining the true object and intention of the Legislature.
29. In yet another Constitution Bench judgment in the case of A.K.Gopalan vs. State of Madras reported in AIR 1950 SC 27, it was observed as under:-
17.....The result appears to be that while it is not proper to take into consideration the individual opinions of members of Parliament or Convention to construe the meaning of the particular clause, when a question is raised whether a certain phrase or expression was up for consideration at all or not, a reference to the debates may be permitted.
30. In the case of Express Newspaper (Private) Ltd. and another vs. The Union of India and others reported in AIR 1958 SC 578, N.H.Bhagwati, J., observed as under:-
173. We do not propose to enter into any elaborate discussion on the question whether it would be competent to us in arriving at a proper construction of the expression fixing rates of wages to look into the Statement of Objects and Reasons attached to the Bill No.13 of 1955 as introduced in the Rajya Sabha or the circumstances under which the word minimum came to be deleted from the provisions of the Bill relating to rates of wages and the Wage Board and the fact of such deletion when the act came to be passed in its present form. There is a consensus of opinion that these are not aids to the construction of the terms of the Statute which have of course to be given their plain and grammatical meaning ( See:
Ashvini Kumar ghosh v. Arabinda Bose, 1953 SC R 1:(AIR 1952 SC 369) (Z24) and Provat Kumar Kar v. William Trevelyan Curtiez Parker, AIR 1950 Cal 116 (Z25). It is only when the terms of the statute are ambiguous or vague that resort may be had to them for the purpose of arriving at the true intention of the Legislature.
31. It can thus be seen that the debates in the Parliament are ordinarily not considered as the aids for interpretation of the ultimate provision which may be brought into the statute. The debates at best indicate the opinion of the individual members and are ordinarily not relied upon for interpreting the provisions, particularly when the provisions are plain. We are conscious that departure is made in two exceptional cases, namely, the debates in the Constituent Assembly and in case of Finance Minister s speech explaining the 9 reason for introduction of a certain provision. The reason why a certain language was used in a draft bill and why the provision ultimately enacted carried a different expression cannot be gathered from mere comparison of the two sets of provisions. There may be variety of reasons why the ultimate provision may vary from the original draft. In the Parliamentary system, two Houses separately debate the legislations under consideration. It would all the more be unsafe to refer to or rely upon the drafts, amendments, debates etc for interpretation of a statutory provision when the language used is not capable of several meanings. In the present case the Tribunal in case of M/s. Merilyn Shipping & Transports vs. ACIT (supra) fell in a serious error in merely comparing the language used in the draft bill and final enactment to assign a particular meaning to the statutory provision.
32. It is, of course, true that the Courts in India have been applying the principle of deliberate or conscious omission. Such principle is applied mainly when an existing provision is amended and a change is brought about. While interpreting such an amended provision, the Courts would immediately inquire what was the statutory provision before and what changes the legislature brought about and compare the effect of the two. The other occasion for applying the principle, we notice from various decisions of the Supreme Court, has been when the language of the legislature is compared with some other analogous statute or other provisions of the same statute or with expression which could apparently or obviously been used if the legislature had different intention in mind, while framing the provision. We may refer to some of such decisions presently. In the case of Bhuwalka Steel Industries Ltd. vs. Bombay Iron and Steel Labour Board reported in AIR 2010 (Suppl.) 122, the Apex Court observed as under:-
"The omission of the words as proposed earlier from the final definition is a deliberate and conscious act on the part of the legislature, only with the objective to provide protection to all the labourers or workers, who were the manual workers and were engaged or to be engaged in any scheduled employment. Therefore, there was a specific act on the part of the legislature to enlarge the scope of the definition and once we accept this, all the arguments regarding the objects and reasons, the Committee Reports, the legislative history being contrary to the express language, are relegated to the background and are liable to be ignored.
33. In the case of Agricultural Produce Market Committee, Narela, Delhi vs. Commissioner of Income Tax and anr. reported in AIR 2008 SC(Supplement) 566, the Supreme Court noticed that prior to Finance Act, 2002, the Income Tax Act did not contain the definition of words Local Authority . The word came to be defined for the first time by the Finance Act of 2002 by explanation/ definition clause to Section 10(20) of the Act. It was further noticed that there were significant difference in the definition of term local authority contained under Section 3(31) of the General Clauses Act, 1987 as compared to the definition clause inserted in Section 10(20) of the Income Tax Act, 1961 vide Finance Act, of 2002. In this context it was observed that:-
27. Certain glaring features can be deciphered from the above comparative chart. Under Section 3(31) of the General Clauses Act, 1897, local authority was defined to mean a municipal committee, district board, body of port commissioners or other authority legally entitled to the control or management of a municipal or local fund. The words other authority in Section 3(31) of the 1897 Act has been omitted by Parliament in the Explanation/ definition clause inserted in Section 10(20) of the 1961 Act vide Finance Act, 2002. Therefore, in our view, it would not be correct to say that the entire definition of the word local authority is bodily lifted from Section 3(31) of the 1897 Act and incorporated, by Parliament, in the said Explanation to Section 10(20) of the 1961 Act. This deliberate omission is important.
34. The Apex Court in the case of Greater Bombay CO-operative Bank Ltd. vs. M/s. United Yarn Tex.Pvt.Ltd & Ors. reported in AIR 2007 SC 1584, in the context of 10 question whether the Cooperative Banks transacting business of banking fall within the meaning of banking company defined in the Banking Regulation Act, 1949, observed as under:-
59. The RDB Act was passed in 1993 when Parliament had before it the provisions of the BR Act as amended by Act No.23 of 1965 by addition of some more clauses in Section 56 of the Act. The Parliament was fully aware that the provisions of the BR Act apply to co-operative societies as they apply to banking companies. The Parliament was also aware that the definition of banking company in Section 5(c) had not been altered by Act No.23 of 1965 and it was kept intact, and in fact additional definitions were added by Section 56(c). Co-operative bank was separately defined by the newly inserted clause (cci) and primary co-operative bank was similarly separately defined by clause (ccv). The Parliament was simply assigning a meaning to words; it was not incorporating or even referring to the substantive provisions of the BR Act. The meaning of banking company must, therefore, necessarily be strictly confined to the words used in Section 5(c) of the BR Act. It would have been the easiest thing for Parliament to say that banking company shall mean banking company as defined in Section 5(c) and shall include co-operative bank as defined in Section 5(cci) and primary co-operative bank as defined in Section 5(ccv). However, the Parliament did not do so. There was thus a conscious exclusion and deliberate commission of co-
operative banks from the purview of the RDB Act. The reason for excluding co-operative banks seems to be that co-operative banks have comprehensive, self-contained and less expensive remedies available to them under the State Co-operative Societies Acts of the States concerned, while other banks and financial institutions did not have such speedy remedies and they had to file suits in civil courts.
35. In the case of National Mineral Development Corporation Ltd. vs. State of M.P and another reported in AIR 2004 SC 2456, the Apex Court observed as under:-
29. The Parliament knowing it full well that the iron ore shall have to undergo a process leading to emergence of lumps, fines, concentrates and slimes chose to make provision for quantification of royalty only by reference to the quantity of lumps, fines and concentrates. It left slimes out of consideration.
Nothing prevented the Parliament from either providing for the quantity of iron ore as such as the basis for quantification of royalty. It chose to make provision for the quantification being awaited until the emergence of lumps, fines and concentrates. Having done so the Parliament has not said fines including slimes . Though slimes are not fines the Parliament could have assigned an artificial or extended meaning to fines for the purpose of levy of Royalty which it has chosen not to do. It is clearly suggestive of its intention not to take into consideration slimes for quantifying the amount of royalty. This deliberate omission of Parliament cannot be made good by interpretative process so as to charge royalty on slimes by reading Section 9 of the Act divorced from the provisions of the Second Schedule. Even if slimes were to be held liable to charge of royalty, the question would still have remained at what rate and on what quantity which questions cannot be answered by Section 9.
36. In the case of Gopal Sardar, vs. Karuna Sardar reported in AIR 2004 SC 3068, the Apex Court in the the context of limitation within which right of preemption must be exercised and whether in the context of the relevant provisions contained in West Bengal Land Reforms and Limitation Act, 1963 applied or not, observed as under:-
118....Prior to 15-2-1971, an application under Section 8 was required to be made to the Revenue Officer specifically empowered by the State Government in this behalf. This phrase was substituted by the phrase Munsif having territorial jurisdiction by the aforementioned amendment.
Even after this amendment when an application is required to be made to Section 8 of the Act either to apply Section 5 of the Limitation act or its principles so as to enable a party to make an application after the expiry of the period of limitation prescribed on showing sufficient cause for not making an application within time. The Act is of 1955 and for all these years, no provision is made under Section 8 of the Act providing for condonation of delay. Thus, when Section 5 of the Limitation Act is not made applicable to the proceedings under Section 8 of the Act unlike to the other proceedings under the Act, as already stated above, it is appropriate to construe that the period of limitation prescribed under Section 8 of the Act specifically and expressly governs an application to be made under the said section and not the period prescribed under Article 137 of the Limitation Act.
37. In our opinion, the Tribunal committed an error in applying the principle of conscious omission in the present case. Firstly, as already observed, we have serious doubt whether such principle can be applied by comparing the draft presented in Parliament and ultimate legislation which may be passed. Secondly, the statutory provision is amply clear.
38. In the result, we are of the opinion that Section 40(a)(ia) would cover not only to th the amounts which are payable as on 31 March of a particular year but also which are payable at any time during the year. Of course, as long as the other requirements of the said provision exist. In that context, in our opinion the decision of the Special Bench of the Tribunal in the case of M/s. Merilyn Shipping & Transports vs. ACIT(surpa), does not lay down correct law.
39. We answer the questions as under:-
Question (1) in the negative i.e. in favour of the Revenue and against the assessees. Q u es t i on ( 2) a ls o i n th e n eg at iv e i . e. in fav our of t h e R ev e n ue an d ag a i ns t t he as s es s e es . "
Thus it is clear that Hon'ble Gujarat High Court has considered all aspects of the issues raised in the decision of Special Bench in case of Merilyn Ship ping Transporters V. ACIT (supra). W e further find that that even Hon'ble Calcutta High Court has overruled this decision in case of CIT Vs. Cresent Export Syndicate. Moreover Chandigarh Bench of the Tribunal consistently has been following the decision of Hon'ble Gujarat High Court in case of CIT V. Sikandarkhan N Tunwar and others (supra) as well as the decision of Hon'ble Calcutta High Court in case of CIT Vs. Cresent Export Syndicate (supra). "
25 Now the question arises whether dismissal of SLP by Hon'ble Supreme Court in case of CIT V. Vector Shipping Services (P) Ltd (supra) would change the above legal position. W e are afraid the answer is "No". The Hon'ble Supreme Court had itself considered the issue in case of V.M. Salgaocar and Bros. Pvt Ltd V. CIT, 243 ITR 383. It was observed by the Court on this issue as under:
" " Dif fer e nt c o ns i d er at i ons ap p ly w h en a s pec i a l l e av e p et i ti o n un d er ar t ic l e 1 3 6 o f t he Co ns t i tu t io n is s i m p l y dis m is s ed by s ay i ng "
d is m is s e d ", an d an a p pe a l p r ov i de d un d er a r tic l e 13 3 is d is m is s e d a ls o wi t h t h e w or ds " t h e ap pe a l is d is m is s e d. " I n th e for m er c as e i t has b ee n l ai d d ow n by t h is c o u r t th at w h en a s p ec i a l l e av e pe t it i on is d is m is s e d th is c our t do es no t c o m me nt o n t h e c or r ec tn es s or o th er wis e of th e or d er fr o m w h ic h le av e to a pp e a l is s o ug h t. Bu t w ha t t he c o ur t m ea ns is t ha t i t 12 do es n o t c o ns id er i t t o b e a f i t c as e f or ex e r c is e of i ts j ur is d ic t io n un de r ar t ic l e 13 6 o f th e C o ns t i tu t io n. T ha t c er ta i n ly c ou l d n ot b e s o w he n a n ap p ea l is d is m is s e d t ho u gh by a no n- s pe a k i ng or d er . H er e th e doc tr in e of m er ge r ap p l ies . In t ha t c as e, t he Su pr e m e Co ur t up h o lds t he d ec is i o n of t h e Hi g h C our t or t h e Tr i b un a l fr om wh ic h th e a pp e a l is pr ov i de d un der c l aus e ( 3) of ar tic l e 1 33 . T h is doc tr in e of me r g er do es n ot a pp l y i n t h e c as e o f d is mis s a l o f a s p ec ia l l e av e pe t it i on u nd er ar t ic le 1 3 6. W he n a n ap p ea l is d is m is s e d t he or d er of th e H ig h Co ur t is m er ge d w it h th at o f th e Su pr e me Co ur t. W e q u ot e t he f ol l ow i n g par a gr ap h fr o m t h e j u dg m en t of t h is c ou r t i n t he c as e of S upr e me Co ur t E mp l oy ees ' W e lf ar e As s oc i a ti o n v . U n i on of I nd i a, AI R 19 9 0 H on 'b l e S upr e m e C o ur t 3 34 ; [1 9 89 ] 4 S CC 18 7 ( a t pa g e 3 44 o f A IR 19 9 0 S. C) :
" 22 . It h as be e n a lr e ady n ot ic e th a t t h e s pec i a l l eav e p et it i o n f i le d o n be h a lf o f t h e Un i o n o f In d ia ag a i ns t t h e s a i d j ud g me n ts of th e D e lh i Hi gh Co ur t we r e s um m ar i ly dis m is s ed by t h is c o ur t . It is no w a we l l s et t le d pr inc i p le of la w t ha t w he n a s pec i a l l e av e pe ti t io n is s u mm ar i ly d is m is s e d un d er ar t ic l e 1 36 o f t he C o ns t it u ti o n, by s u c h d is m is s a l th is c o ur t do es no t lay d ow n any l aw , as e nv is ag e d by ar tic l e 1 4 1 o f t h e C o ns t it u t i on , as c on t en d ed by th e le a r ne d At tor n ey - G en er a l . In In d ia n O i l Co r p o r at i on Lt d. v . S t at e o f Bi h ar [1 9 87 ] 1 6 7 IT R 8 9 7; [ 19 8 6] 4 S C C 1 46 ; AI R 1 98 6 Ho n' b le S u pr e m e C ou r t 1 7 80 , i t h as be e n he l d by t his c o ur t th at th e d is m is s a l o f a s p ec ia l le av e p et it i o n i n l i m i ne by a n o n- s pe ak in g or d er do es no t j us t ify a ny i nf er enc e t h at , by nec es s ar y i mp l ic at i on , t h e c on t en t io ns r a is ed in t he s pec i a l l eav e p et i ti on o n t he mer i ts of t h e c as e hav e b ee n r e jec t ed by th e S up r e m e C o ur t . I t h as b ee n fur th er h e l d t h at th e ef f ec t o f a n on- s p eak i n g or d er o f d is mis s a l of a s p ec i al le av e pe t it i on wi t ho ut a ny t h in g mo r e in d ic at i ng th e gr ou n d s or r e as ons o f i ts d is m is s a l mus t, by nec es s ar y i mp l ic at i o n, be t ak e n t o b e th at t he S up r e m e C o ur t ha d d ec id e d o n ly t h at it w as n ot a fi t c as e w her e s p ec i al le av e s h o u ld b e gr a n te d. I n U n i on o f I nd i a v . A l l In d i a Ser v i c es Pe ns i on er s ' As s o c i at i on [1 9 88 ] 2 SC C 5 80 ; AI R 1 9 8 8 H o n' b le S u pr e me C o ur t 5 0 1, th is c o ur t h as g iv e n r e as o ns fo r d i s m is s i n g t he s p ec i a l le av e p et i t io n. W h e n s uc h r eas o ns ar e g iv e n , t h e dec is i o n bec o mes o ne w h ic h at tr ac ts ar ti c l e 14 1 of t h e C o ns t it u ti o n w h ic h pr ov id es t h at th e l aw dec l ar ed by t h e S u pr e m e Co ur t s h a l l b e b i nd i n g on a l l t h e c our ts w i th i n t h e t er r i tor y o f I n d ia . I t, th er ef or e, f o l lo ws t h a t wh e n n o r eas o n is giv e n, bu t a s pec i a l le av e pe t it i on is d is m is s e d s i mp l ic it er , it c a nn ot b e s ai d th a t t h er e h as be e n a dec l ar at i on of l a w by t h is c our t u n der a r t ic le 14 1 o f th e C ons t it ut i o n. "
It w as , t her e for e , c o nt en d ed t ha t o nc e t h is c our t in C iv il A p pe a l N o. 42 4 of 1 9 99 , h as d is m is s e d th e a p pe a l i t has u ph e l d th e or d er of t h e H ig h Co ur t i n th e c as e o f t he as s es s m en t y e ar 1 98 0- 8 1 an d it c a n no t tak e a d if fer e nt v ie w f or t h e as s es s m en t y e ar 1 9 79- 8 0. T h er e a pp e ar s to b e s ubs t anc e i n t he s u b m is s io n o f th e as s es s ee . "
From above it becomes clear that after an SLP is dismissed in limine or simplictor as such then it cannot be said that the Hon'ble Supreme Court has commented on the merits of the issue. It is a sim ple case of rejection of prayer for entertaining the SLP. The same view was taken by the Hon'ble Supreme Court again in case of Kunhayam m ed and others V State of Kerala and another, 245 ITR 360 (S.C). Head Note reads as under:
" Ar t ic l e 1 3 6 of t h e Co ns t i tu t io n of In d ia c on f er s a s pec i a l j ur is d ic t i on o n th e S u pr em e C our t wh ic h is s we e p in g i n n at ur e. I t is a r es id u ar y p o wer i n th e s e ns e t h at it c onf er s an ap p e ll a te j ur is d ic t i o n o n th e S u pr em e Co ur t s u bj ec t to s p ec i a l le a v e b e i ng gr a nt ed i n s uc h m at te r s as m a y no t be c o ver e d b y t he pr ec e d i ng ar t ic les . E v e n i n t he f i e ld c o ver e d b y t h e pr ec e d in g ar t ic l es , j ur i s d ic t i on c o nf er r ed b y ar t ic l e 1 3 6 is a v a i la b l e t o be ex er c is e d in a n ap pr opr i at e c as e. It is a n u n tr am m ele d r es er v o ir of 13 po we r i nc ap a bl e of b e i ng c onf in e d to def in i t i on a l b ou n ds ; t h e d is c r et i on c onf er r e d o n th e S u pr em e C our t b e in g s u bj ec t e d t o o n l y on e l im i ta t io n, th at is , th e wis d om and g oo d s ens e or s e ns e of j us t ic e of t he j ud ges . N o r i gh t of ap p ea l is c onf er r ed u p on an y p ar t y; on l y a d is c r e ti o n is ve s te d i n th e S u pr em e Cou r t t o i nt er f er e b y gr a nt i ng l ea v e t o a n a pp l ic a nt t o e nt er i n its ap p el l at e j ur is d i c ti o n n ot o p en o t her wi s e a nd as of r i g ht .
T he j ur is d ic ti o n c o nf er r ed b y ar t ic l e 13 6 is d i v is ib l e i nt o t wo s t ag e s ; t h e f ir s t s ta g e is u p to t he d is pos a l of t h e pr a ye r f or s pec i a l l ea v e t o a pp e a l; th e s ec o nd s ta g e c om m enc es if a n d wh en t he l ea v e t o ap p ea l is gr a n te d an d t he pe t it i on f or s p ec ia l l e a ve t o a p pe a l i s c o n v er t ed i nt o a n ap pe a l.
W hile h ea r i n g th e p et i ti o n f or s p ec i al le a v e t o ap p ea l , th e S u pr em e C our t is c a l l ed u po n t o s e e whe t her th e pe t it i o ner s h ou l d b e gr a n te d s uc h l ea v e or n ot . W hile h ear i n g s uc h pe t it i on t he S u pr em e C o ur t d o es n ot ex er c is e i ts a p p el l at e j ur is d ic t io n; it m er e l y e x er c is es i ts d is c r e ti o nar y j ur is d ic t i o n to gr a nt or n ot t o gr a nt l e a v e t o ap p ea l If th e p et it i o n s e ek in g gr a nt of s p ec i al l e a ve is d is m is s e d , i t is a n ex pr es s i on of op i n io n b y t he S upr em e C our t th at a c as e f or i n v ok i ng th e ap p e ll a te j ur is d ic t i on of t h e c our t wa s n ot m ad e o ut .
A n or d er r ef us i n g s p ec ia l le a v e t o a p pe a l m a y be b y a n on s pe ak i ng or d er o r b y a s p e ak ing or d er . In ei t her c as e it d o es n ot a ttr a c t th e doc tr in e of m er g er . A n or d er r ef us i n g s pec i a l le a v e to a p pe a l do es no t s ta n d s u bs t it ut e d in t he p l ac e of th e or de r u nd er c h a ll e ng e . A ll th a t it m eans is t ha t th e S upr em e Co ur t was n ot i nc l i ne d to ex er c i s e its d is c r e t io n s o as to a ll o w t he a pp e al b e i ng f il e d. W hate ve r b e t he phr as e ol o g y em p lo ye d i n t he or d er of d is m i s s a l, if i t is a n on- s p eak i n g or d er , i . e., i t d oes n o t as s ig n r eas o ns f or d is m is s i ng th e s p ec i a l le a v e pe t it i on , i t wo u ld n e it her a ttr ac t t h e doc tr i ne of m er g er s o as t o s t a nd s ubs t it ut e d i n th e p l a c e of t h e or der pu t i n is s ue bef or e it, nor b e a dec l ar at i on of l a w b y t h e S u pr em e Co ur t u n de r a r t ic le 1 4 1 of t he Co ns t i tu t io n f or t her e i s n o l a w wh ic h has be en dec l ar ed .
If th e or d er r ef us i n g s pec i a l l e a v e t o a pp e a l is a s pe ak i ng or der , i. e ., it g i ves r e as o ns f or r ef us in g t he g r a nt of le a ve , t he n t he o r d er h as t wo im pl ic at i ons . Fir s t l y, t he s t at em en t of la w c on t ai n ed in t h e or de r is a dec l ar at i on of l a w b y th e S upr em e C our t wi t hi n th e m ea n in g of ar t ic l e 14 1 wh ic h wi l l ob v i o u s l y be b i nd i n g o n a ll c our ts an d T r i b un a ls i n I n di a an d c er t a in l y t h e p ar t i es t her e to . S ec on d l y, ot h er t ha n t h e d ec lar a ti o n of l a w, wh a te v er is s ta t ed i n th e o r d er ar e t he f i n d in gs r ec or d ed b y t he S upr em e C o ur t wh ic h wo u l d be b i nd i n g on th e p ar t i es an d t he c our t, tr i b un a l or au th or it y whos e or d er was un der c ha l l en g e, i n a n y pr oc e e di n gs s u bs eq u e nt t h er et o, on th e p r i nc ip l e of j u d ic i a l d is c i pl i n e, th e S upr em e C o ur t b e i ng t he a p ex c our t of th e c ou n tr y. T h e d ec l ar a t io n of la w wi l l b e g o v er n e d b y ar t ic le 1 41 bu t, t he c as e n ot b e i ng on e wh er e l ea v e is g r a nt e d, t h e d oc tr i ne of m er g er dos no t a pp l y. "
From above it becomes clear that if an SLP is dismissed then it cannot be said that the Hon'ble Supreme Court has laid down any law. Now in the present case the SLP in case of CIT V Vector Shipping Services (supra) following order has been passed by the Hon'ble Supreme Court :
"Heard Mr. Mukul Rohtagi, Ld. Attorney General, for the petitioner Delay in filing and refilling special leave petition is condoned Special leave petition is dismissed"
Therefore it is a case of simple dismissal of SLP and cannot be said to have laid down any law. In view of this discussion and the 14 earlier discussion we have preferred to follow the decision of Hon'ble Gujarat High Court in case of CIT V. Sikandarkhan N. Tunvar & Ors, (supra) instead the decision of Hon'ble Allahabad High Court in case of CIT V Vector Shipping Services (supra), we decide this issue against the assessee and confirm the order of Ld. CIT(A)."
Following the above we decide the issue raised by the
assessee against the assessee.
8. In the result, appeal of the assessee is dismissed.
Order pronounced in the open court on 10.9.2014
Sd/- Sd/-
(SUSHMA CHOWLA) (T.R. SOOD)
JUDICI AL MEMBER ACCOUNTANT MEMBER
Dated: 10.9.2014
SURESH
Copy to: The Appellant/The Respondent/The CIT/The CIT(A)/The DR