Appeal Pending? You Still Owe Taxes, Says High Court

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Case Name:

Mphasis Limited Vs Deputy Commissioner of Income Tax & Anr. (High Court of Karnataka)

Writ Petition No.133313 of 2017(T-IT)

Date: 1st August 2018

Key Takeaways:

1. An appeal pending before an appellate authority doesn't exempt the assessee from paying taxes as per DCIT's orders under section 154 (of Income Tax Act, 1961).

2. The court directed the Commissioner of Income Tax (Appeals) to decide the appeal on merits within 10 weeks.

3. The interim order granted by the court will benefit the petitioner until the appeal is considered.

Issue:

Can an assessee escape from paying taxes as per orders passed by the DCIT under section 154 (of Income Tax Act, 1961) when their appeal is pending before an appellate authority?

Facts:

1. Mphasis Limited filed a tax return for the assessment year 2009-10, declaring a total income of Rs.45,78,65,652/-.

2. The DCIT passed a final assessment order on 31.03.2014 under Section 143(3) (of Income Tax Act, 1961) read with Section 144C(13) (of Income Tax Act, 1961), determining the total income at Rs.524,81,23,820/- and total tax payable at Rs.191,88,91,064/-.

3. Mphasis filed an appeal before the Commissioner of Income Tax (Appeals), which is pending.

4. The DCIT passed another order on 08.03.2017 under section 154 (of Income Tax Act, 1961).

5. Mphasis filed a writ petition, seeking to prevent the recovery of disputed taxes while their appeal is pending.

Arguments:

Petitioner (Mphasis Limited):

1. Recovery proceedings of income attributable to MAP are illegal and unsustainable.

2. Disallowance under Section 40(a)(ia) (of Income Tax Act, 1961) should be granted deduction under Sections 10A (of Income Tax Act, 1961)/10B and 10AA.

3. Payments to Associate Enterprises fall under Section 28 (of Income Tax Act, 1961), making Section 40(a)(ia) (of Income Tax Act, 1961) inapplicable.

4. Allowances of deductions under Section 80JJAA (of Income Tax Act, 1961) should be considered. Respondent (DCIT): 1. The petitioner has not made out a prima-facie case for interference under Articles 226 and 227 of the Constitution.

2. The Assessing Officer has dealt with the assessee's contentions in proceedings under Sections 201 (of Income Tax Act, 1961) and 143.

3. The stay of recovery of dues to the Government is not justified.

Key Legal Precedents:

The court cited the Division Bench judgment in Commissioner of Income Tax and another vs. M/s M Pact Technology Services Pvt. Ltd. (I.T.A.No.228/2013 dated 11.07.2018). This judgment held that if deductions under Section 40(a)(ia) (of Income Tax Act, 1961) are not allowed, they should be added to the profits of the undertaking on which the assessee would be entitled to deduction under Section 10A (of Income Tax Act, 1961).

Judgement:

1. The court ruled that an appeal pending before an appellate authority doesn't mean the assessee can escape from tax payable as per orders passed by the DCIT under section 154 (of Income Tax Act, 1961).

2. The court directed the Commissioner of Income Tax (Appeals) to decide the appeal on merits within 10 weeks from the receipt of the certified copy of the order.

3. The interim order granted by the court will benefit the petitioner until the appeal is considered.

4. All contentions of both parties are left open to be urged before the Appellate Authority.

FAQs:

1. Q: Does filing an appeal exempt me from paying taxes?

A: No, the court ruled that even with a pending appeal, you're still required to pay taxes as per the DCIT's orders under section 154 (of Income Tax Act, 1961).

2. Q: How long did the court give for deciding the appeal?

A: The court directed the Commissioner of Income Tax (Appeals) to decide the appeal within 10 weeks from receiving the certified copy of the order.

3. Q: What happens to the interim order granted by the court?

A: The interim order will continue to benefit the petitioner until the appeal is considered by the Commissioner of Income Tax (Appeals).

4. Q: Can the parties still present their arguments before the Appellate Authority?

A: Yes, the court left all contentions of both parties open to be urged before the Appellate Authority.

5. Q: What was the main issue in this case?

A: The main issue was whether an assessee can avoid paying taxes ordered by the DCIT under section 154 (of Income Tax Act, 1961) when they have a pending appeal.

1. The petitioner has filed the present Writ Petition for issue of a writ in the nature of mandamus to direct the respondent No.1 not to recover the disputed taxes mentioned in the order dated 26.12.2016 vide Annexure-G1 for the assessment year 2009-10 till disposal of the application pending before the competent authorities under Mutual Agreement Procedure; to direct the respondent No.1 not to recover the disputed taxes mentioned in the assessment order dated 26.12.2016 as per Annexure-G1 for the assessment year 2009-10 till disposal of appeals filed before the Commissioner of Income Tax (Appeals); to direct the respondents not to take nay coercive steps for recovery of disputed taxes and further, to direct the respondents not withhold any refunds otherwise due to tire petitioner for the impugned year or other years.

2. It is the case of the petitioner that the petitioner is engaged in the business of software development and maintenance services ( “ Information Technology/IT ” ), IT enabled services (ITeS) and Infrastructure Technology outsourcing ( ‘ ITO ’ ). Accordingly he has filed return of income for the assessment year 2009-10 on 30.09.2009 declaring total income of Rs.45,78,65,652/-. The return of income filed by the petitioner was selected for scrutiny and statutory notice under Section 143(2) (of Income Tax Act, 1961) were issued. The petitioner filed the details called for by the Assessing Officer from time to time. The petitioner filed objection to the draft assessment order before the Dispute Resolution Panel and the DRP passed the order.

3. Subsequently, the Additional Commissioner of Income Tax passed the final assessment order on 31.03.2014 under Section 143(3) (of Income Tax Act, 1961) read with Section 144C(13) (of Income Tax Act, 1961) determining the total income of the petitioner at T524,81,23,820/-and total tax payable as per the assessment order at Rs.191,88,91,064/-. Aggrieved by the said assessment order the petitioner has filed an appeal before the Tribunal and the same is pending. The petitioner also filed an application under Section 154 (of Income Tax Act, 1961) against the assessment order dated 31.03.2014. The Assessing Officer, by order dated 17.10.2014 determined the total income of the petitioner at Rs.302,91,01,348/- and total tax payable is at Rs.44,05,30,063/-. The petitioner having apprehension that the respondent may take coercive steps to recover the disputed demand and tax, has filed the present writ petition before this Court for the relief sought for.

4. I have heard the learned counsel for the parties to the lis.

5. Sri A. Shankar, learned counsel for the petitioner contends that the recovery proceedings of income attributable to MAP are illegal and unsustainable in law and liable to be stayed. He further contended that without prejudice to his case disallowance of Rs.578,20,05,614/- made under Section 40(a)(ia) (of Income Tax Act, 1961) requires to be granted deduction under Section 10A (of Income Tax Act, 1961)/ 10B and 10AA of the Act. It is further contended that payment made to Associate Enterprises are falling under Section 28 (of Income Tax Act, 1961),consequent to the provisions of Section 40(a)(ia) (of Income Tax Act, 1961) is not applicable. The allowances of deductions under Section 80JJAA (of Income Tax Act, 1961) has to be considered. He would further contend that if the impugned action of the respondent is not stayed, the very purpose for which the writ petition is filed will be frustrated. Therefore, he sought to allow the writ petition.

5. In support of the contentions, learned counsel relied on the Division Dench judgment of this Court in the case of Commissioner of Income Tax and another vs. M/s M Pact Technology Services Pvt. Ltd. made in I.T.A.No.228/2013 dated 11.07.2018 wherein this Court has held that the disallowance under Section 40(a)(ia) (of Income Tax Act, 1961) is to be made of the expenses incurred and claimed by the assessee but before the payment of which, the assessee has failed to deduct tax at source. The genuineness of the expenditure is not in dispute. The dispute is whether Tax Deducted at Source was to be made before making the payment. Without going into the nature of the transaction, ultimately held that if the deductions under Section 40(a)(ia) (of Income Tax Act, 1961) is not allowed, the same would been to be added to the profits of the undertating on which the assessee would be entitled for deduction under Section 10A (of Income Tax Act, 1961) and therefore, he sought to allow the petition.

6. Per contra Sri.K.V.Aravind, learned counsel appearing for the respondent sought to justify the impugned action and contended that the petitioner has filed an application for stay during pendency of the appeal before the Commissioner of Income Tax (Appeals). The CBDT has issued instruction No. 1914, dated 02.92.1993, Office Memorandum dated 29.02.291C. The first respondent disposed of the application by order dated 24.03.2017 and thereafter, the petitioner has preferred application before the second respondent and the second respondent considering the consent of the representative of the petitioner directed payment of Rs.65 crores against Rs.93.28 crores being 15% of the total demand of Rs.595.25 Crores, which works out to 10.90% of the total current demand for the assessment year 2009-10 and 2013-14. The requirement of payment of 15% as eonremplated in Office Memorandum dated 29.02.2017 issued by CBDT has been modified to 20% vide Office Memorandum dated 31.07.2017. Hence, direction to pay 65% which would be 10.90% is in fact very reasonable and the petitioner cannot raise any grievance on the said order. He further contended that the Assessing Officer both in proceeding under Section 201 (of Income Tax Act, 1961) and Section 143 (of Income Tax Act, 1961) has elaborately dealt with the contentions of the assessee and it has been made out that the amount paid to the non resident companies who are taxable under the Act and assessee was required to deduct tax at source under Section 195 (of Income Tax Act, 1961). Therefore, petitioner has not made out any prima-facie case to interference by this Court under Articles 226 and 227 of the Constitution of India. He further contended that the stay of recovery of dues to the Government is not made out by the petitioner. Therefore; he sought for writ petition.

7. Sri. K.V.Aravind, learned counsel fairly submits that the Appellate Authority may be directed to dispose of the appeal within a period of eight weeks from the date of receipt of the copy of this order and till then the interim order granted by this Court shall continue and enure to the benefit of petitioner. The said submission is place on record.

8. In view of the rival contentions urged by the learned counsel for the parties, it is not in dispute that the 1 respondent Deputy Commissioner Income Tax by an order dated 06.02.2017 the exercising st powers under Section 143(3) (of Income Tax Act, 1961) read with Section 144(c) (of Income Tax Act, 1961) has determined the total income of the petitioner at Rs.524,81,23,820/- and total tax payable by the petitioner was at Rs.191,88,91,064/-. It is also not in dispute that the petitioner being aggrieved by the said assessment order, filed an appeal before the Commissioner for Income Tax(Appeals). The said appeal is pending before the Appellate Authority. That does not mean that the petitioner cannot escape from the tax payable as per the orders passed by the Deputy Commissioner Income Tax dated 08.03.2017 exercising powers under section 154 (of Income Tax Act, 1961).

9. Therefore, without adverting to merits and demerits of the arguments urged by the learned counsel for the parties, it is suffice to direct the Appellate Authority, i.e., Commissioner of Income Tax (Appeals) to decide the appeal on merits as expeditious as possible, not later than 10 weeks from the date of receipt of certified copy of this order.

10. For the reasons stated above the writ petition is dispose of. The Commissioner of Income Tax appeals is directed to dispose of the appeal pending before him on merits within ten weeks from the date of receipt of certified copy of this Order. Till such consideration of the appeal, the interim order granted by this Court shall enure to the benefit of the petitioner and the Commissioner shall decide the appeal without seeking further rime. All the contentions of both the parties are left open to be urged before the Appellate Authority. *****