M/S GANAPATHY & CO.BANGALORE Vs. COMMR.INCOME TAX,BANGALORE
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 1964 Judgment Date: Jan 18, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1964 OF 2008
M/S GANAPATHY & CO.,
BANGALORE ...APPELLANT
VERSUS
THE COMMISSIONER, INCOME TAX
BANGALORE ...RESPONDENT
J U D G M E N T
RANJAN GOGOI, J.
1. The High Court of Karnataka by the impugned order dated 3rd July,
2007 had answered the questions referred to it for its opinion under
Section 256(2) of the Income Tax Act, 1961 (as it then existed) against the
assessee and in favour of the revenue. Aggrieved, the assessee has filed
this appeal upon grant of leave under Article 136 of the Constitution of
India.
2. At the outset, the questions of law on which the High court had
rendered its opinion may be set out as below.
|“i. |Whether on the facts and in the |
| |circumstances of the case, the Income |
| |Tax Appellate Tribunal was right in |
| |law in deleting the disallowance of |
| |service charges paid to M/s Universal |
| |Trading Company made under Section |
| |40A(2)? |
|ii. |Whether on the facts and in the |
| |circumstances of the case, the |
| |Tribunal was justified in holding that|
| |the loss shown by the assessee in the |
| |film business amounting to |
| |Rs.31,48,670/- was allowable? |
|iii. |Whether on the facts and in the |
| |circumstances of the case, the |
| |Tribunal was justified in allowing the|
| |assessee's claim for deduction under |
| |Section 35(2A) in respect of donation |
| |to Aparna Ashram?” |
3. The necessary discussions can best be unfolded by taking up each of
the claims of deduction made by the assessee which were decided against the
assessee by the High Court by the order under challenge.
4. Disallowance of Service charges
For the Assessment Year in question i.e. 1984-1985, the assessee
claimed the benefit of disallowance of the service charges paid to one M/s
Universal Trading Company (“UTC” for short). The Assessing Officer
disallowed the said claim on the ground that in the proceedings arising out
of the Assessment Order for the previous year i.e. 1983-1984 the said claim
had been negatived by the C.I.T. in appeal. The Assessing Officer, in
addition, also took note of the fact that the membership in the asseessee-
firm and UTC is common and one K.L. Srihari had a sizeable holding in each
of the two firms. The Assessing Officer also had regard to the fact, while
disallowing the said claim, that the assessee had failed to provide proof
of service rendered by UTC in the period covered by the Assessment Year in
question. He also took note of the advice of a Chartered Accountant
contained in a Note which was found in the course of a search proceeding.
The said Note contained an advise to the assessee to include service
charges to UTC as one of the methods to reduce the incidence of Income Tax.
The aforesaid conclusions of the Assessing Officer were upheld in Appeal
by the CIT. Aggrieved, the Revenue filed an appeal before the Income Tax
Appellate Tribunal (“ITAT” for short) which reversed the findings and
conclusions of the Primary and First Appellate Authority primarily on the
ground that the order of the CIT (Appeals) in the earlier assessment
proceeding, relied upon by the Assessing Officer, was reversed in appeal by
the ITAT and also that in the course of said earlier assessment proceeding
the legal effect of the advice tendered by the Chartered Accountant to
reduce the incidence of Income Tax was found to be permissible in law.
The High Court reversed the said conclusion of the ITAT which has been
challenged by the assessee in the present appeal.
A reading of the order of the ITAT in favour of the assessee which
has been reversed by the High Court would indicate that the learned ITAT
did not address itself to a very fundamental issue that had arisen before
it, namely, effect of the failure of the assessee to produce evidence in
support of the services claimed to have been rendered by UTC during the
Assessment Year in question i.e. 1984-1985. The answer given by the
assessee in response to a specific query made by the Assessing Officer in
this regard was that explanations in this regard had already been submitted
for the previous Assessment Year i.e. 1983-1984. If service had been
rendered to the assessee by UTC during the Assessment Year in question and
service charges had been paid for such service rendered, naturally, it was
incumbent on the part of the assessee to adduce proof of such service
having been rendered during the period under assessment. There is no
dispute on the issue that the assessee did not, in fact, offer any proof of
the service rendered during the Assessment Year in question. In such
circumstances, the High Court was perfectly justified in reversing the
eventual conclusion of the learned ITAT on the basis that the findings and
conclusions recorded in the course of the assessment proceedings of the
previous year cannot foreclose the findings that are required to be arrived
at for the Assessment Year in question i.e. 1984-1985. We, therefore, can
find no fault with the order of the High Court on the aforesaid score.
5. Disallowance of loss shown by the assessee in Film business:
The aforesaid claim had been negatived both by the Assessing Officer
and the learned CIT (Appeals) but relief had been afforded by the learned
ITAT. The learned ITAT while allowing the deduction appears to have taken
into account the view recorded in another proceeding by the ITAT itself in
the case of a sister concern [ITA No.3717/Mds/1987]. The relief granted in
the case of the sister concern in ITA No.3717/Mds/1987 was on identical
facts and, therefore, perhaps, ITAT did not think it proper to depart from
the view already taken in the said case of the sister concern. However,
the High Court found the aforesaid view taken by the Tribunal in ITA
No.3717/Mds/1987 to be wholly untenable and, therefore, interfered with the
reliance placed by the ITAT on the aforesaid decision in the present case.
There was no legal bar for the High Court in taking the aforesaid view.
Taking into account the above and the facts of the case which have
been set out by the High Court in paragraphs 29 and 30 of its order, we do
not see how the same can be faulted. Having regard to the facts and
circumstances in which the “investment” was made and “loss” claimed, we can
find no fault in the view taken by the High Court that the entire
transaction was a sham transaction and was a calculated device to avoid tax
liability.
6. Disallowance of donation to Aparna Ashram:
Disallowance of donation made to Aparna Ashram by the assessee was
refused by the Primary and First Appellate Authority on the ground that the
necessary certificate showing that the donee (Aparna Ashram) had complied
with the conditions subject to which registration was granted to it under
Section 35(2A) of the Act was not produced by the assessee so as to entitle
it to the claim of deduction of the donation made. The learned ITAT took
the view that the aforesaid conditions were not material. The High Court
on due consideration found that the said conditions were necessary
preconditions to the grant of statutory registration and had to be
satisfied. There is no dispute on the fact that no such certificate had
been furnished by the assessee and also that all Authorities have
consistently held that if and when such certificate is produced the
consequential benefit can be afforded to the assessee. In the aforesaid
circumstances, we do not see how the view taken by the High Court that the
assessee was not entitled to the benefit of donation made to Aparna Ashram
can be faulted.
7. An issue on which there could be little dispute on law, nevertheless,
needs to be dealt with in view of the elaborate arguments advanced on
behalf of the appellant – assessee, namely, that the High Court had relied
on findings of fact independent of those considered by the learned ITAT
which is the final fact finding authority. Reliance in this regard has been
placed on several judgments of this Court to contend that issues of fact
determined by the Tribunal are final and the High Court in exercise of its
reference jurisdiction should not act as an appellate Court to review such
findings of fact arrived at by the Tribunal by a process of reappreciation
and reappraisal of the evidence on record. The aforesaid position in law
has been consistently laid down by this Court in several of its
pronouncements out of which, illustratively, reference may be made to
Karnani Properties Ltd. Vs. Commissioner of Income-Tax, West Bengal [82 ITR
547], Rameshwar Prasad Bagla vs. Commissioner of Income-Tax, U.P. [87 ITR
421], Commissioner of Income-Tax, Bombay City vs. Greaves Cotton and Co.
Ltd. [68 ITR 200] and K. Ravindranathan Nair vs. Commissioner of Income-Tax
[247 ITR 178].
8. The legal position in this regard may be summed up by reiterating
that it is the Tribunal which is the final fact finding authority and it is
beyond the power of the High Court in the exercise of its reference
jurisdiction to reconsider such findings on a reappraisal of the evidence
and materials on record unless a specific question with regard to an issue
of fact being opposed to the weight of the materials on record is raised in
the reference before the High Court.
9. Having reiterated the above position in law we do not see how the
same can be said to have been transgressed by the impugned order of the
High Court. Each relevant fact considered by the High Court to answer the
questions referred to it on the claim(s) of deduction raised by the
appellant – assesee are acknowledged, admitted and undisputed facts. No
fresh determination of facts found by the Tribunal have been made by the
High Court. What, however, the High Court did was to take into account
certain additional facts, already on record, which were however not taken
note of by the Tribunal to arrive at its findings, e.g., that the appellant
– assessee had failed to furnish any proof of service rendered by UTC in
the course of the relevant Assessment Year i.e. 1984-1985. Alternatively,
the High Court construed certain facts as, for example, compliance of the
conditions subject to which registration was granted to the Aparna Ashram
under Section 35(2A) of the Act to be of significance as against the
contrary/different view of the learned Tribunal on this score. There was no
departure from the basic facts found by the learned Tribunal in the two
illustrative situations cited above, namely, that (i) the assessee had not
adduced any proof of service rendered by UTC in the Assessment Year 1984-
1985; (ii) that Aparna Ashram had not complied with the conditions subject
to which registration had been granted to it under Section 35(2A) of the
Act.
10. The difference in the approach between the learned Tribunal and the
High Court, therefore, is not one relating to determination of new or
additional facts but was merely one of emphasis on facts on which there is
no dispute. This is surely an exercise that was within the jurisdiction of
the High Court in the exercise of its reference power under the provisions
of the Act as it then existed.
11. For the aforesaid reasons, we find no fault in the view taken by the
High Court while answering the questions referred to it. Accordingly, the
appeal is dismissed however without any order as to costs.
....................,J.
(RANJAN GOGOI)
....................,J.
(PRAFULLA C. PANT)
NEW DELHI
JANUARY 18, 2016
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