TaxTMI 
TaxTMI 
2008 (3) TMI 18
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....aries paid and benefits given to the expatriate employees in Japan and also the method of calculation. This has also been resolved and we are not directly concerned with this, except to the extent of the fall-out of the resolution. 3. On 24^th January, 1998, a survey under Section 133A of the Income Tax Act, 1961 (the Act) was carried out in the office premises of the Assessee in Delhi. As a result thereof, it was found that the Assessee was not deducting tax at source in respect of certain payments made to the expatriate employees. The Assessee gave its explanation, but in any event, it suo motu agreed to pay taxes and interest thereon without any demand being raised by the Revenue. 4. In December, 1998 the Assessee paid to the Revenue an amount of Rs.52,79,76,749/- towards payment of tax and interest thereon for a period of ten years, that is, for the financial years 1988-89 to 1997-98. The dispute in the present appeal pertains only to the financial years 1995-96 to 1997-98. The Assessee gave its calculations for the year-wise appropriations. 5. Even after the payment was made, the Assessee was asked, from time to time, to file necessary details ....
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....3,98,93,597/- for the three financial years. As regards the financial years 1988-89 to 1994-95, the Assessing Officer held that the Assessee was not entitled to any refund whether of principal or of interest for these years and, therefore, rejected the claim of the Assessee for refund. We are not concerned with the refund issue. 10. The Assessee then preferred an appeal before the CIT (A) which was dismissed by him by an order dated 27^th August, 2004 11. Feeling aggrieved, the Assessee then preferred an appeal before the Tribunal which was allowed by the order which is now under challenge under Section 260-A of the Act. 12. After noting the facts of the case, the Tribunal framed two questions for its consideration. These two questions read as follows:- i) Whether the appellant is entitled to a refund of taxes and interest paid as a person responsible for deduction of [tax] on salary paid to his employees. This issue arises for consideration in FY 88-89 to 94-95. ii) Whether the demand for tax and interest at Rs.25,29,93,017/- made for the FY 95-96 to 97-98 without giving credit to taxes and interest already paid for a sum of Rs. 14.88 crores, which is part of ....
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.... signed the Power of Attorney. The objection raised is that Mr. Hidetoshi Kamezaki did not himself appear before the notary and, therefore, the Power of Attorney was not valid and consequently the authorization given to Mr. Hiroshi Yashino was also not valid making the appeal filed by him incompetent. 18. We are not at all impressed by this preliminary objection for the reason that the Power of Attorney appears to have been executed in accordance with the laws of Japan and there is nothing to show that under the Japanese law Mr. Kayoko Gingawa could not have made the statement that he did or that it was absolutely necessary for Mr. Hidetoshi Kamezaki to be personally present before the notary. No such objection was raised by anybody before the Indian Consular in our Embassy in Tokyo, Japan and it is now too late for the Revenue to raise such an objection. 19. Apart from the above, we are of the opinion that whether the appeal was filed by a competent person or not, is a finding of fact arrived at by the Tribunal and we do not see any reason to disturb this finding unless it is perverse, in any manner, which it does not appear to be. We are, therefore, of the op....
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....to 1997-98, the Assessee was entitled to be given credit for the amount that it had already paid towards tax and interest for these very financial years, the payment having been made in December, 1998. There is absolutely no reason why the Assessee cannot be given credit for the total payment made by it of Rs.14,88,61,518/-. There is no dispute that the Assessee had paid this amount towards tax and interest thereon. All that was required was for the Assessing Officer to make a simple adjustment of the amount paid against the amount due and re-calculate the tax liability of the Assessee. The Tribunal has noted that the CIT (A) rejected the plea of the Assessee for adjustment of the amount on three grounds. These have been summarized as follows:-i) The appropriation made by the appellant in its letter dt 21.12.98 did not have any legal sanctity when it was found that the tax and interest paid were less than what was actually due to proceedings determining tax and interest u/s 201(1) and 201(1A) were initiated by the AO. ii) The payment of Rs.52.79 crores by the appellant in Dec 98 was an on account payment for a period of time and the appropriation of such payment in its order dt ....