2016 (7) TMI 447 - AT - Income Tax

Appeal allowed, remitted for verification. Assessee-friendly interpretation adopted. Second proviso retrospective.

The Tribunal allowed the appeal for statistical purposes and remitted the matter to the Assessing Officer for verification on whether the recipient ... Addition u/s 40(a)(ia) on account of interest paid to NBFCs - retrospectivity - Held that:- What follows is that in the peculiar circumstances of the case and looking to the nature of the provisions with which we are presently concerned, the view expressed by the Hon’ble Delhi High Court in the case of Ansal Landmark (2015 (9) TMI 79 - DELHI HIGH COURT ), which is in favour of assessee, is required to be followed by us. Revenue does not, therefore, derive any advantage from Hon’ble Kerala High Court’s decision in the case of Thomas George Muthoot (2015 (7) TMI 810 - KERALA HIGH COURT). The second proviso to Section 40(a)(ia) was held to be retrospective in in the context of finding solution to the problem to the taxpayer, and the matter was set aside to the file of the Assessing Officer with certain directions about factual verifications on the recipient having included the same in the receipts based on which taxable income is computed, and the income having been offered to tax. It is this action of the coordinate bench that was upheld by the Tribunal and the course of action so adopted by the coordinate bench approved by Their Lordships. It is impermissible to pick up one of the aspects of the decision of the judicial authority and read the same in isolation with other aspects. The decision is not on the retrospectivity of the proviso alone, its also on deletion of disallowance in the event of the recipient having taken into account these receipts in the computation of income. The judge made law is as binding on the authorities below as is the legislated statue. The hyper technical stand of the Departmental Representatives, therefore, does not merit our approval. In view of the above discussions, as also bearing in mind entirety of the case, we deem it fit and proper to remit the matter to the file of the Assessing Officer for limited verification on the aspect as to whether recipient of payment has included the same in his computation of business income offered to tax, and, if found to be so, delete the disallowance in question. With these directions, the matter stands restored to the file of the Assessing Officer. Issues involved:- Challenge to addition of interest paid to NBFCs under section 40(a)(ia) for assessment year 2010-11.Analysis:1. The appeal was filed by the assessee against the CIT(A)'s order confirming the addition of interest paid to NBFCs under section 40(a)(ia). The Assessing Officer disallowed the amount for non-deduction of tax at source. The assessee relied on the Delhi High Court's judgment but was unsuccessful.2. The Tribunal noted that the Delhi High Court approved a similar stand taken by a coordinate bench of the Tribunal in a previous case. The Tribunal held that the insertion of the second proviso to Section 40(a)(ia) is declaratory and curative, with retrospective effect from April 1, 2005. The matter was remitted to the Assessing Officer for fresh adjudication based on this observation.3. The Tribunal emphasized that the Delhi High Court's judgment in favor of the assessee should be followed based on the principle that interpretations favoring the assessee should be adopted when two reasonable constructions of a taxing provision are possible. The Tribunal rejected the argument that the corresponding rule in the Income Tax Rules was not retrospective.4. The Tribunal addressed the lack of guidance from the jurisdictional High Court and emphasized that decisions from non-jurisdictional High Courts are binding unless contrary views exist from the jurisdictional High Courts. The matter was remitted to the Assessing Officer for verification regarding the recipient's inclusion of payments in income computation.5. The Tribunal concluded by allowing the appeal for statistical purposes and remitting the matter to the Assessing Officer for verification on whether the recipient included the payments in their income computation. The decision was pronounced in open court on June 24, 2016.