9911796707
TMI Blog2013 (7) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... hen no new materials had been presented before it and all materials were placed before the lower authorities? 3. Whether, on the facts and circumstances of the case, the ITAT was right in law in remanding the matters back to the AO without giving specific directions?" T.C.(A)Nos.223 to 250 of 2013: "1. Whether the Income Tax Appellate Tribunal erred in remanding the matter back to the assessing officer when there was no factual dispute between the parties and the CIT(A) had given a conclusive order on the entire factual matrix of the case? 2. Whether the Income Tax Appellate Tribunal erred in not recording a finding that the appellant had produced fresh material, but still remanding the appellant's cases along with the other assessees who had produced fresh material? 3. Whether the Income Tax Appellate Tribunal erred in not deciding issues other than reinsurance premium, on which, according to the impugned order itself, there are no fresh materials produced? 4. Whether the Income Tax Appellate Tribunal erred in remanding the matter back to the assessing officer without recording a finding on what materials were produced freshly before it?" 2. Since the issues raised in all t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt are all questions that have to be considered by the Assessing Officer based on DTAA. The Assessing Officer disallowed the claim under Section 40(a)(i) on the ground that there were no TDS made. The Tribunal pointed out that detailed paper-books were filed by the assessees indicating the details of re-insurance premium given to the non-resident insurance companies, profit margin of the assessee companies, explanation on the concept of unexpired risk reserve etc., apart Double Taxation Avoidance Agreements entered into between India and Switzerland and India and Japan. In addition, several other documents were also placed by the assessee. In paragraph 17 of the order, the Tribunal viewed that these documents were not made available to the lower authorities. The Tribunal also viewed that the recent decisions of the Court on this issue are also relevant for consideration. In this background, the Tribunal thought it fit to remand the assessment proceedings back to the Assessing Officer for de novo consideration. 5. Considering the observation made by the Tribunal that fresh materials were placed, the assessees filed Miscellaneous Petitions under Section 254(2) of the Income Tax Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llaneous Petitions is concerned, the M/s.United India Insurance Company Limited is stated to have filed Writ Petitions before this Court, which are stated to be in the stage of maintainability question, having regard to Section 260A of the Income Tax Act. 11. Learned senior counsel appearing for the assessees rightly pointed out to the Miscellaneous Petitions filed by the Revenue and submitted that when all the materials, which are necessary for deciding the issues on the need of TDS on the reinsurance paid to non-resident reinsurers, were there before the Tribunal and the materials, even according to the Revenue, were not fresh materials, but were considered by the Assessing Officer, the Tribunal had committed a serious error in ordering remand without even specifying what are the fresh documents that are filed before the Tribunal warranting remand. In the background of the admitted fact that no fresh materials were filed, the Revenue pleaded that the Tribunal should have considered the issues by itself. Quite apart, he further pointed out to various further issues in the Revenue's appeals too that the perfunctory manner of functioning by the Tribunal calls for serious view by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended provision under Section 9 of the Income Tax Act, the remand is called for. The entire issue rests on the understanding of the materials placed by the assessees on the nature of transaction and ultimately, the applicability of that provisions of the Act. This would be so not only with reference to the issue on TDS on the payment made to Non-Resident Indians, but also on other issues including those which were pointed out by the Revenue in their Miscellaneous Petitions. 16. We may point out herein that the Tribunal's view that the request of the assessees is more in the nature of the review does not rest on any justifiable ground. When there is an apparent error on the face of record of the Tribunal holding that fresh materials have been filed and both sides agree that there were no fresh materials, their request is one for rectification of the error for considering the case of the assessees as well as the Revenue on merits on the basis of materials placed before the Tribunal. Hence, we reject the line of reasoning by the Tribunal in this regard. 17. In the background of the jurisdiction of the Tribunal as a fact finding authority, we feel that the Tribunal should have acted ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
