, `'
IN THE INCOME TAX APPELLATE TRIBUNAL
"C" BENCH, MUMBAI
. , , ,
BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND
SHRI AMIT SHUKLA, JUDICIAL MEMBER
. / ITA no. 1689/Mum./2011
( / Assessment Year : 200708)
Income Tax Officer
................. /
Ward4(2)(1), Aayakar Bhavan
101, M.K. Road, Mumbai 400 020 Appellant
v/s
M/s. Pratibhuti Viniyog Ltd.
15B, 3rd Floor, 28, Rajabahdur Mansion ................... /
Bombay Samachar Marg, Fort Respondent
Mumbai 400 023
./ Permanent Account Number AAACP7334B
/ Revenue by : Smt. Parminder
/ Assessee by : Shri Pradip Kedia
/ /
Date of Hearing 13.08.2014 Date of Order 22.08.2014
/ ORDER
, /
PER AMIT SHUKLA, J.M.
The present appeal has been preferred by the Revenue
challenging the impugned order dated 30th December 2010, passed by
the learned Commissioner (Appeals)VIII, Mumbai, for the quantum of
assessment passed under section 143(3) of the Income Tax Act, 1961
M/s. Pratibhuti Viniyog Ltd.
2
(for short "the Act"), for the assessment year 200708, on the
following grounds:
"1(i). On the facts and in the circumstances of the case and in
law the learned CIT(A) erred in deleting the disallowance of `
3,00,009 made under section 40(a)(ia) in respect of VSAT
charges and transaction charges paid to stock exchange,
without appreciating the facts that these were composite
charges for professional and technical services rendered by the
stock exchange to its members and the assessee has failed to
deduct TDS thereon.
(ii). On the facts and in the circumstances of the case and in law
the learned CIT(A) erred in in ignoring the fact that these
services are essential in nature as they can only be availed by
members of stock exchange.
(iii) On the facts and in the circumstances of the case and in law
the learned CIT(A) erred in ignoring the facts that use of
technology and algorithmic based programs have converted an
erstwhile physical market into a digitally operated market.
(iv) On the facts and in the circumstances of the case and in law
the learned CIT(A) erred in ignoring the fact that the services
rendered by the brokers are not standard services but services
that has been developed to cater to the needs of the broker
community to facilitate trading.
(v) On the facts and in the circumstances of the case and in law
the learned CIT(A) has overlooked the fact that the brokers
have in subsequent years themselves started deducting the TDS
on such payments and that there is no reason to give a different
treatment in this year.
2. On the facts and in the circumstances of the case and in law
the learned CIT(A) erred in deleting the addition of ` 4,41,221
made under section 14A r/w Rule 8D by the Assessing Officer.
3. On the facts and in the circumstances of the case and in law
the impugned order of the learned CIT(A) is contrary to law and
consequently merits to be set aside and that of the Assessing
Officer be restored."
2. Facts in brief: The assessee company is engaged in the business
of share broking and apart from that it has been receiving income from
M/s. Pratibhuti Viniyog Ltd.
3
interest and dividend. The Assessing Officer noted that the assessee
has debited VSAT charges of ` 1,10,000 and transaction charges of `
2,90,009, in the Profit & Loss account, which he was of the opinion
that were in the nature of technical services, therefore, the assessee
was liable to deduct tax on such payment. In response to the show
cause notice, as to why disallowance under section 40(a)(ia) should
not be made, the assessee submitted that the TDS has not been
deducted, because there is no rendering of professional or technical
services on such charges. Reliance was placed on the decision of the
Tribunal, Mumbai Bench, in Kotak Securities Ltd. The Assessing Officer
held that the decision of the Tribunal has not been accepted by the
Department and the matter is pending before the High Court.
Therefore, analysing the nature of services in detail, he held that such
a payment is to be disallowed under section 40(a)(ia) as the assessee
was liable to deduct tax under section 194J.
3. Before us, it has been admitted by both the parties that insofar
as the disallowance of ` 2,90,009, on account of transaction charges is
concerned, the same has been decided against the assessee by the
Hon'ble Jurisdictional High Court in CIT v/s Kotak Securities Ltd.
[2012] 340 ITR 333 (Bom.) However, the learned counsel pointed out
that in another decision, the Hon'ble Jurisdictional High Court in CIT
v/s The Stock and Bond Trading Company, vide order dated 14 th
M/s. Pratibhuti Viniyog Ltd.
4
October 2011, has held that even the transaction charges are not
covered under section 194J. He though admitted that this decision of
the High Court was delivered few days prior to the decision of Kotak
Securities Ltd. Insofar as the VSAT charges are concerned, the
learned counsel submitted that this issue is covered infavour of the
assessee by the decision of the Hon'ble Jurisdictional High Court in CIT
v/s Angel Capital and Debit Market Ltd., ITA no.475 of 2011, order
dated 28th July 2011. The learned Departmental Representative also
admitted that the issue of VSAT charges is covered by the said
decision of the High Court.
4. Thus, in view of the above submissions, we hold that insofar as
the transaction charges are concerned, the assessee was liable to
deduct TDS under section 194J in view of the decision of Hon'ble
Jurisdictional High Court in Kotak Securities Ltd., which is a later
decision and, therefore, the disallowance under section 40(a)(ia), has
rightly been made by the Assessing Officer. As regards VSAT charges
are concerned for sum amounting to ` 1.10 lakhs, following the
decision of Angel Capital &Debit Market Ltd. (supra), we hold that
these are not in the nature of technical services, therefore, no TDS
was required and consequently, no disallowance under section
40(a)(ia) is called for.
M/s. Pratibhuti Viniyog Ltd.
5
5. However, regarding ground no.1, before us, the learned counsel
has raised an alternative plea that all the payments remained paid up
to 31st March 2007 and, therefore, no disallowance under section
40(a)(ia) should be made even with regard to transaction charges in
view of the decision of Allahabad High Court in Vector Shipping
Services Pvt. Ltd. He submitted that though there are two High Court
decision, one of Calcutta High Court and other of Gujarat High Court
against the assessee, however, the Hon'ble Allahabad High Court in
case of CIT v/s Vector Shipping Service Pvt. Ltd., ITA no.122 of 2013,
order dated 9th July 2013, has held that the amount should be
deducted on the amount which is payable and not which has been paid
by the end of the year. He pointed out that this decision of the
Allahabad High Court stands approved in the sense that the SLP
against the said decision has been dismissed by the Hon'ble Supreme
Court, vide order dated 2nd July 2014. Thus, he submitted that this
decision being favourable to the assessee, should be followed.
6. The learned Departmental Representative, on the other hand,
submitted that this issue was not raised before the authorities below,
therefore, the same should not be entertained and secondly the
decision of Calcutta High Court and Gujarat High Court should be
followed which are more elaborate and detail judgments.
M/s. Pratibhuti Viniyog Ltd.
6
7. We have heard the rival contentions. On a perusal of the order of
the Hon'ble Allahabad High Court in Vector Shipping Services Pvt. Ltd.,
ITA no.122 of 2013, judgment dated 9th July 2013, it is seen that only
question of law which was formulated by the Hon'ble High Court was
as under:
"Whether on the facts and in the circumstances of the case, the
Hon'ble ITAT has rightly confirmed the order of the CIT(A) and
thereby deleting the disallowance of ` 1,17,68,621 made by the
Assessing Officer under section 40(a)(ia) of the I.T. Act, 1961,
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 Pvt. Ltd. and there was
a Memorandum of Understanding signed between both the
companies as per the definition of memorandum of
understanding, it includes contract also."
8. Thus issue of paid and payable was not subject of reference
before the Hon'ble High Court. Further, from the facts which has been
incorporated by the Hon'ble High Court, was that M/s. Mercator Lines
Ltd. had deducted tax at source on the salaries paid by it on behalf of
the assessee in respect of which the disallowance was made by the
Assessing Officer under section 40(a)(ia). While answering the
aforesaid question of law, the Hon'ble High Court held in the present
case, tax was duly deducted as the TDS has been deducted from the
salary of the employees paid by M/s. Mercator Lines Ltd. on behalf of
Vector Shipping Service (the assessee) and the circumstances in which
such salaries were paid by M/s. Mercator Lines Ltd., for M/. Vector
Shipping Services, where sufficiently explained by the assessee. Thus,
M/s. Pratibhuti Viniyog Ltd.
7
the issue was decided on the ground that the tax has already been
deducted, therefore, no disallowance under section 40(a)(ia) should be
made. After having answered the question in the aforesaid manner,
the Hon'ble High Court further observed as under:
"It is to be noted that for disallowing expenses from business
and profession on the ground that TDS has not been deducted,
the amount should be payable and not which has been paid by
the end of the year."
9. Such an observation of the Hon'ble High Court sans the issue in
question of law formulated is in the form of obiter dicta. This
observation was made by the Court because the Tribunal while dealing
with the said disallowance has referred to the decision of the Special
Bench in M/s. Merilyn Shipping and Transport Ltd., 136 ITD 23 (SB). It
is not the case where the Hon'ble High Court has categorically affirmed
the reasoning and interpretation given by the Special Bench. On the
contrary, we find that the Hon'ble Calcutta High Court in CIT v/s
Crescent Exports Syndicate, [2013] 262 CTR (Cal.) 525, has
specifically examined the correctness of the majority view of Marilyn
Shipping and disapproved the view taken by the Special Bench in the
following manner:-
The High Court examined the correctness of the majority
views in the case of Merilyn Shipping. The main thrust of the
majority view was based on the fact "that the Legislature has
replaced the expression "amounts credited or paid" with the
expression 'payable' in the final enactment.
Comparison between the pre-amendment and post
amendment law is permissible for the purpose of ascertaining
M/s. Pratibhuti Viniyog Ltd.
8
the mischief sought to be remedied or the object sought to
be achieved by an amendment. But the same comparison
between the draft and the enacted law is not permissible.
Nor can the draft or the bill be used for the purpose of
regulating the meaning and purport of the enacted law. It is
the finally enacted law which is the will of the legislature. CIT
vs. Kelvinator reported in 2010(2) SCC 723, relied on.
The Tribunal fell into an error in not realizing this aspect of
the matter. The Tribunal held "that where language is clear
the intention of the legislature is to be gathered from the
language used". Having held so, it was not open to seek to
interpret the section on the basis of any comparison between
the draft and the section actually enacted nor was it open to
speculate as to the effect of the so-called representations
made by the professional bodies. The Tribunal held that
"Section 40(a)(ia) of the Act creates a legal fiction by virtue
of which even the genuine and admissible expenses claimed
by an assessee under the head "income from business and
profession" if the assessee does not deduct TDS on such
expenses are disallowed".
Having held so was it open to the Tribunal to seek to justify
that "this fiction cannot be extended any further and,
therefore, cannot be invoked by AO to disallow the genuine
and reasonable expenditure on the amounts of expenditure
already paid"? Does this not amount to deliberately reading
something in the law which is not there?
The Tribunal realized the meaning and purport of Sec.
40(a)(ia) correctly when it held that in case of omission to
deduct tax even the genuine and admissible expenses are to
be disallowed. But they sought to remove the rigour of the
law by holding that the disallowance shall be restricted to the
money which is yet to be paid. What the Tribunal by majority
did was to supply the casus omissus which was not
permissible and could only have been done by the Supreme
Court in an appropriate case. Bhuwalka Steel Industries vs.
Bombay Iron & Steel Labour Board reported in 2010 (2) SCC
273, relied on.
The key words used in Sec. 40(a)(ia), are "on which tax is
deductible at source under Chapter XVIIB". If the question
is "which expenses are sought to be disallowed?" The answer
is bound to be "those expenses on which tax is deductible at
source under Chapter XVII -B. Once this is realized nothing
turns on the basis of the fact that the legislature used the
word 'payable' and not 'paid or credited'. Unless any amount
is payable, it can neither be paid nor credited. If an amount
has neither been paid nor credited, there can be no occasion
for claiming any deduction.
The language used in the draft was unclear and susceptible
to giving more than one meaning. By looking at the draft it
could be said that the legislature wanted to treat the
payments made or credited in favour of a contractor or sub-
contractor differently than the payments on account of
interest, commission or brokerage, fees for professional
services or fees for technical services because the words
M/s. Pratibhuti Viniyog Ltd.
9
"amounts credited or paid" were used only in relation to' a
contractor or sub-contractor. This differential treatment was
not intended. Therefore, the legislature provided that the
amounts, on which tax is deductible at source under Chapter
XVII-B payable on account of interest, commission or
brokerage, rent, royalty, fees for professional services or
fees for technical services or to a contractor or sub-
contractor shall not be deducted in computing the income of
an assessee in case he has not deduced, or after
deduction has not paid within the specified time. The
language used by the legislature in the finally enacted law is
clear and unambiguous whereas the language used in the bill
was ambiguous.
There can be no denial that the provision in question is
harsh. But that was no ground to read the same in a manner
which was not intended by the legislature. The contention
that the second proviso sought to become effective from 1st
April, 2013 should be held to have already become operative
prior to the appointed date cannot also be acceded to. The
law was deliberately made harsh to secure compliance of the
provisions requiring deductions of tax at source. It is not the
case of an inadvertent error.
Thus the majority views expressed in the case of Merilyn
Shipping & Transports was held to be not acceptable. The
appeal was thus, allowed in favour of the revenue. Merilyn
Shipping & Transports (ITA 477/Viz./2008, dated March 29,
2012), overruled."
10. Similar interpretation has been reiterated and explained in detail
by the Hon'ble Gujarat High Court, in CIT v/s Sikandarkhan N. Tunvar
& Ors.[ 2013] 357 ITR 312 (Guj.). In this decision, again the Hon'ble
Gujarat High Court has specifically dealt this issue in a great length
and overruled Marilyn Shipping in the following manner:-
"For the purpose of the said section, 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
M/s. Pratibhuti Viniyog Ltd.
10
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. 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.
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, Court examined 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. 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."
U/s 40(a)(ia) 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 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
M/s. Pratibhuti Viniyog Ltd.
11
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.
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. 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. 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. 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 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.
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, 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. Tribunal committed an error in
applying the principle of conscious omission in the present
case. Firstly, Court 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. Section
40(a)(ia) would cover not only to the amounts which are
payable as on 31th March of a particular year but also which
M/s. Pratibhuti Viniyog Ltd.
12
are payable at any time during the year. Of course, as long
as the other requirements of the said provision exist. M/s.
Merilyn Shipping & Transports v/s ACIT, incorrect law.
Bhuwalka Steel Industries Ltd. vs.Bombay Iron and Steel
Labour Board 2010 (Suppl.) 122, Agricultural Produce
Market Committee, Narela, Delhi vs. Commissioner of
Income Tax and anr. AIR 2008 SC (Supplement) 566;
Greater Bombay Co-operative Bank Ltd. v/s M/s.United Yarn
Tex.Pvt.Ltd & Ors. AIR 2007 SC 1584; National Mineral
Development Corporation Ltd. vs. State of M.P and another
reported in AIR 2004 SC 2456; Gopal Sardar, vs. Karuna
Sardar AIR 2004 SC 3068, relied on. "
11. Thus, the decision of the Hon'ble Calcutta High Court and Hon'ble
Gujarat High Court constitutes ratio decidendi on this issue which in
our humble opinion should prevail. Thus, we do not find any merit in
the contention raised by the learned counsel that the decision of the
Allahabad High Court in Vector Shipping Services Pvt. Ltd. against
which Special Leave Petition has been dismissed by the Hon'ble
Supreme Court, lays down a ratio decidendi on the phrase paid and
payable by approving the decision of Special Bench in Merlyn Shipping.
Thus, ground no.1, of the Revenue is partly allowed.
12. Ground no.2, relates to disallowance of ` 4,41,221, made under
section 14A, r/w rule 8D.
13. The Assessing Officer has made the disallowance under section
14A, after applying rule 8D of ` 4,41,221, as against the dividend
income of ` 4,76,670, as shown by the assessee. The learned
Commissioner (Appeals) has held that rule 8D is not applicable for the
M/s. Pratibhuti Viniyog Ltd.
13
assessment year 200708 as the same is applicable from the
assessment year 200809, in view of the decision of the Hon'ble
Jurisdictional High Court in Godrej & Boyce Mfg. Co. Ltd. v/s DCIT,
(2010), 328 ITR 081 (Bom.). Accordingly, he gave a reasonable basis
for determining the quantum of disallowance in the following manner:
"I find that it will be reasonable to determine the quantum of the
amount of expenditure incurred for earning of exempted income
at the ratio of the total expenditure debited to P&L Account in
proportion that the value of transaction in shares which has yielded exempt
income bears to the value of total transactions in share as under:-
Amount of expenditure allowable to earning of exempt income =
Total Expenditure debited to P&L Nc (Direct & Indirect) X Value of transaction
in share yielding exempt income
Value of Total Transactions in share
The amounts so determined shall be disallowed as per the provisions of
section 14A, being expenditure incurred for earning of exempt income. The
A.O. is directed to determine the quantum of such expenditure by applying
the ratio as mentioned above and disallow the same as per the provisions of
section 14A. The appeal on this ground is accordingly, disposed off with these
directions: The disallowance made by the A.O. by applying Rule 80 at
Rs.4,41,221/ is thus, deleted in respectful compliance of the decision of the
Hon'ble Bombay High Court in the case of M/s. Godrej & Boyce Manufacturing
Co. Ltd.(Supra). The appeal on this ground is treated as partly allowed, for
statistical purpose."
14. After hearing the parties, we do not find any reason to deviate
from such a finding of the learned Commissioner (Appeals), because
admittedly disallowance cannot be made on the basis of formula laid
down by the rule 8D in the assessment year 200708 and some
reasonable basis has to be adopted. Thus, ground no.2, raised by the
Revenue is dismissed.
M/s. Pratibhuti Viniyog Ltd.
14
15.
15. In the result, Revenue's appeal is partly allowed.
22 August 2014
nd
Order pronounced in the open Court on 22nd August 2014
Sd/- Sd/-
.
D. KARUNAKARA RAO AMIT SHUKLA
ACCOUNTANT MEMBER JUDICIAL MEMBER
MUMBAI, DATED: 22nd August 2014
/ Copy of the order forwarded to:
(1) / The Assessee;
(2) / The Revenue;
(3) () / The CIT(A);
(4) / The CIT, Mumbai City concerned;
(5) , , / The DR, ITAT, Mumbai;
(6) / Guard file.
/ True Copy
/ By Order
. / Pradeep J. Chowdhury
/ Sr. Private Secretary
/ / (Dy./Asstt. Registrar)
, / ITAT, Mumbai
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