2003 (4) TMI 33 - HC - Income Tax

Eligibility for deduction of the service charges paid by the respective assessees-Government owned companies-to the Government as per certain Government orders under section 37 of the Income-tax Act 1961 - 1. Whether assessee being a company owned by the Government of Kerala is entitled to claim deduction of the amount paid to the Government of Kerala for the services rendered to the assessee by the Government? - 2. Whether assessee is entitled to claim deduction of Rs. 6, 72, 429 the employer s contribution to the provident fund in the AY 1991-92? - we set aside the orders of the Assessing Officer and the two appellate authorities on the question of deduction of service charges under section 37 of the Act in all these cases and remit the matter to the Assessing Officer for consideration in accordance with law

Issues Involved:
1. Eligibility for deduction of service charges paid by Government-owned companies to the Government under section 37 of the Income-tax Act, 1961.
2. Deduction of employer's contribution to the provident fund in the assessment year 1991-92.

Detailed Analysis:

1. Eligibility for Deduction of Service Charges:
Background: The cases involve Government-owned companies that paid service charges to the Government based on executive orders and claimed these payments as deductions under section 37 of the Income-tax Act. The Assessing Officer rejected these claims, arguing that the service charges were part of the Government's statutory responsibilities and not exclusively for the business purposes of the companies. The Commissioner of Income-tax (Appeals) upheld this view. However, the Income-tax Appellate Tribunal (ITAT) allowed the deductions, stating that the payments were made for services actually rendered by the Government and had been allowed in prior years.

Conflicting Views: Different Benches of the ITAT have taken conflicting views on this matter. Some Benches allowed the deductions based on earlier Tribunal decisions, while others denied them, arguing that each assessment year should be considered independently. This inconsistency was noted as a violation of judicial propriety and discipline, as highlighted by the Supreme Court in various cases.

Supreme Court's Stance: The Supreme Court has emphasized that a Bench of co-ordinate jurisdiction should either follow an earlier decision or refer the matter to a larger Bench if it disagrees. This principle was not followed by the ITAT in these cases, leading to conflicting judgments.

Tribunal's Observations: The ITAT noted that the payments were made pursuant to Government orders, which specified the services rendered. However, the Tribunal did not adequately investigate the basis for these service charges, which could be ascertained from the earliest Government order dated March 25, 1988.

Remand for Fresh Consideration: The High Court set aside the orders of the Assessing Officer and the two appellate authorities and remitted the matter back to the Assessing Officer for fresh consideration. The Assessing Officer is directed to examine the Government orders and the circumstances under which they were issued. The assessees are to produce all relevant documents, and the Assessing Officer must peruse the earliest Government orders to determine the eligibility for deduction under section 37.

2. Deduction of Employer's Contribution to Provident Fund:
Background: The second question involved the deductibility of Rs. 6,72,429, the employer's contribution to the provident fund for the assessment year 1991-92.

Judgment: The counsel for the parties agreed that this issue was covered by a previous judgment (CIT v. Standard Tile and Clay Works P. Ltd., 265 ITR 525 (Ker)), which was against the assessees and in favor of the Revenue. Consequently, the High Court answered this question in favor of the Revenue and against the assessees.

Conclusion:
The High Court disposed of the Income-tax References and Appeals by setting aside the previous orders and remanding the cases to the Assessing Officer for fresh consideration, particularly focusing on the eligibility for deduction of service charges under section 37 of the Income-tax Act. The judgment emphasized the need for judicial propriety and the importance of following precedents or referring matters to a larger Bench in case of disagreements. The issue regarding the provident fund contribution was decided in favor of the Revenue based on existing precedent.

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