1 IN THE HIGH COURT OF KARNATAKA, BANGALORE DATED THIS THE 10 TH DAY OF APRIL, 2013 BEFORE THE HON'BLE MR.JUSTICE RAM MOHAN REDDY WRIT PETITION NOS. 11535 37 OF 2013 (T-IT) BETWEEN: IBM INDIA PRIVATE LIMITED (FORMERLY IBM GLOBAL SERVICES INDIA PVT. LTD.) No.12, SUBRAMANYA ARCADE BANNERGHATTA ROAD BANGALORE 560 029 REP.HEREIN BY ITS DIRECTOR MR. RAVIKUMAR RAMANAN PETITIONER (BY SRI. K P KUMAR, SR. ADV. FOR T SURYA NARAYANA, ADVOCATE) AND : 1 THE INCOME TAX OFFICER (TDS) LARGE TAX PAYERS UNIT JSS TOWERS, 100 FEET RING ROAD BANASHANKARI 3 RD STAGE BANGALORE 560 085. 2 THE COMMISSIONER OF INCOME TAX LARGE TAX PAYERS UNIT JSS TOWERS, 100 FEET RING ROAD BANASHANKARI 3 RD STAGE BANGALORE 560 085. RESPONDENTS (BY SRI. K V ARAVIND, ADVOCATE) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE
2 IMPUGNED ORDER DATED 25.2.2013 VIDE ANN-F PASSED BY THE R1 IN RESPECT OF THE FINANCIAL YEARS 2009-10 TO 2011-12 REJECTING THE PETITIONERS PRELIMINARY OBJECTION AS TO HIS JURISDICTION AND LIMITATION TO THE EXTENT QUESTIONED HEREIN; AND ETC. THESE WRIT PETITIONS ARE COMING ON FOR PRL.HEARING IN B GROUP THIS DAY, THE COURT MADE THE FOLLOWING: ORDER Petitioner an assessee has called in question the legality and validity of the order dt. 25.2.2013 Annexure-F of the 1 st respondent on the premise of being without jurisdiction and barred by limitation and to declare the initiation of proceeding under Section 201(1) and 201(1A) of the Income tax Act, 1961, in respect of returns for the financial year 2009-10; 2010-11 and 2011-12 insofar as tax deducted at source from payments made to non-residents, as without jurisdiction, while tax deducted at source from payments made to residents for the period 1.4.2009 to 31.12.2009 as barred by limitation.
3 2. Petitioner engaged in the business of hardware and software is said to have made payments, to both residents and non-residents during the financial year 2009-10 to 2011-12 and having deducted tax at source under the provisions of Chapter XVII-B of the Income tax Act, 1961, for short Act; credited it to the Central Government by filing quarterly statement of tax deduction in terms of Section 200 of the Act. According to the petitioner few expenses which did not qualify for tax deduction at source, for short TDS, since being a mere provision, without bills from the vendors, or where it could not deduct tax at the time of payment, petitioner made disallowances of the said sums and added it to the total income subsequently, under Section 40(a)(i) and 40(a)(ia) of the Act and claimed deduction from payment in the subsequent year after due payment of TDS, to the credit of the Central Government, which included payments made to residents and non-residents in respect of which tax was
4 required to be deducted under Section 195 of the Act. Petitioner asserts that quarterly statements in that regard when filed were duly processed and intimation issued under Section 200-A of the Act. 3. The 1 st respondent Income tax Officer large Tax Payer Unit (LTU) is said to have issued notice dt. 30.1.2013 Annexure-A calling upon the petitioner to furnish its computation of income and other particulars in view of proceeding initiated under Section 201 of the Act, which was responded to at the first instance by letter dt. 8.2.2013 Annexure-B seeking sometime and thereafterwards by letter dt. 12.2.2013 Annexure-C seeking reasons for initiating proceeding under Section 201 of the Act and contending that proceedings for the financial year 2009-10 was barred by limitation, while seeking an opportunity of hearing.
5 4. It is the allegation of the petitioner that the 1 st respondent without considering the said request, issued another notice dt. 15.02.2013 Annexure-D requiring the petitioner to furnish the details sought for, as also details of provision/disallowance made under Section 40(a)(i)/40(a)(ai) and the reversal of the entries after making payment of the tax deducted at source. Petitioner further asserts that the information sought for is disallowance in relation to payments made outside India or to non-residents on which tax is to be deducted at source in respect of which the 1 st respondent had no jurisdiction, since specifically conferred upon the Director of Income tax (International Taxation) which fact was brought to the notice of the 1 st respondent by letter dt. 22.2.2013 Annexure-E. 5. It is the further allegation of the petitioner that without extending an opportunity of hearing, the 1 st respondent overruled the objections over jurisdiction on
6 the premise of having processed the returns in LTU, hence jurisdiction over payments made to non-residents without adverting to the objection over limitation, though, two years had lapsed from the financial year 2009-10 i.e. 1.4.2009 to 31.12.2009, in terms of Section 201(3) of the Act and proposed to levy interest under Section 201(1) and 201(1A) of the Act on the disallowances under Section 40(a)(i)/40(a)(ia) following the orders for the financial year 2005-06 to 2008-09, while directing the petitioner to file relevant information if the situation was different in the financial years 2009-10 to 2011-12 by order dt. 25.2.2013 Annexure-F. 6. According to the petitioner the jurisdiction of various authorities under the Act is set out in the notification No.263 dt. 14.9.2011 Annexure-G of the Central Board of Direct Taxes (CBDT) investing jurisdiction in the Director of Income tax (International Taxation) for short DIT(IT) in relation to TDS under
7 Section 195 of the Act from payments made to nonresidents and foreign companies while notification No.277 dt. 26.9.2006 Annexure-H confers jurisdiction on the Commissioner of Income tax (LTU) and his subordinates. Petitioner states that the 1 st respondent on an earlier occasion, in respect of payments made to non-residents for the financial year 2010-11 declined to exercise jurisdiction to stay a demand arising therefrom Annexure-J. Hence these petitions. 7. Petitions are opposed by filing statement of objections of the respondents inter alia contending that the petitioner made payments without effecting TDS for the assessment years 2006-07; 2007-08; 2008-09 and 2009-10, a default, which when noticed by the assessing officer led to show cause notices, eliciting replies followed by orders of even date 28.8.2011 Annexures-R1 to R4, invoking Section 201(1) and 201(1A) of the Act. The orders when carried in appeals
8 the Commissioner for Income tax (Appeals) by order dt. 30.3.2012 Annexure-R5 affirmed the orders, by dismissing the appeals. 8. Petitioner preferred further appeals before Income Tax Appellate Tribunal, Bangalore on grounds set out in Annexures R6 to R9. According to the respondents, the Assessing Officer having noticed similar such defaults committed by the petitioner for the assessment years 2010-11, 2011-12, 2012-13 issued show cause notices to which petitioner objected on grounds both jurisdiction and limitation. 9. At paragraph 3 it is stated that the Ministry of finance constituted a Single Window Clearance Point for all matters relating to central excise, income-tax, corporate tax/service tax, called Large Tax Payers Unit (LTU), under a scheme Annexure-R13. The notification in that regard permitted an assessee paying a certain quantum of tax to opt for utilising the services under
9 the LTU, which option the petitioner exercised by filing the required application in Form, Annexure-R10, following which the case was transferred from Range-11 by order dated 7.11.2007 Annexure-R11. The notification Annexure-R12 is said to be over jurisdiction of the authorities under Chapter XVIIB and XVIIBB of the Act. 10. In the circumstances, it is contended that the jurisdiction over issues relating to chapter XVIIB and XVIIBB of the Act in respect of petitioner was vested with the 1 st respondent IT Officer (LTU), since TAN of the petitioner remained with LTU and as the statements filed in Form -27Q were not appearing in the system which on verification when found to be with the DIT(IT), were transferred to LTU during May 2012. Thereafterwards for the fourth quarter of the financial year 2011-12, in respect of Form -27Q rectification order was passed on 15.10.2012, while in respect of
10 Form -27Q for the fourth quarter of the financial year 2010-11, intimation under Section 200-A of the Act, it is said, was generated on 17.1.2013. lastly it is contended that the proceeding initiated for the financial year 2009-10 is not barred by time. 11. Having heard the learned counsel for the parties, perused the pleadings and examined the order Annexure-F, the following questions arise for decision making: i) whether in terms of the notification No.70 dated 3.9.2010 Annexure-G the DIT (IT) had jurisdiction to process the returns filed by the petitioner in Form 27Q relating to TDS from payments made to nonresidents and Form -26Q in relating to residents? or ii) Whether it was the IT Officer (LTU) invested with the jurisdiction under Notification No.277 dt 26.9.2006 Annexure-H on the exercise of option by the petitioner in the form enclosed to the letter Annexure-R10, under the scheme Annexure-R13? iii) Whether in the factual matrix the order Annexure-F is invalid as contended by the petitioner
11 on the premise that the IT Officer (LTU) did not have jurisdiction to initiate proceeding under Section 201(1A) of the Act for the financial year 2009-10 to 2011-12 in respect of TDS returns from payments made to non-residents? iv) Whether the initiation of proceedings by the IT Officer (LTU) over returns of TDS from payments made to residents from 1.4.2009 to 31.12.2009 is barred by limitation? 12. In order to appreciate the contentions of the learned Counsel for the parties it is useful to extract the relevant portion of the notifications Anenxure - G. Sl.No.5 of the Direct Tax Notification No.263 dt. 14.9.2011 (S.0.881(E)) issued by the Central Board of Direct Taxes invoking Subsections 1 and 2 of Section 120 of the Act, in supersession of such earlier notification, invested jurisdiction in the DIT(IT), in respect of persons being non-residents including foreign companies, in the matter of tax deductions at source under Sections 194-B, 195, 196A, 196B, 196C, 196D and 197 of the Act and reads thus:
12 5 Director of Income-tax (International Taxation), Bangalore Bangalore, Karnataka Area lying within the territorial limit of State of Karnataka, Goa and Andhra Pradesh (a) Persons being nonresidents including foreign companies within the meaning of subsection (23A) of section 2 of the Income-tax Act, 1961 and having a Permanent Establishment in terms of the applicable Double Tax avoidance Agreement, in the areas mentioned in column (4) against serial number 5 or having a Business Connection or having any source of income accruing or arising or deemed to be accruing or arising in the areas mentioned in column (4) against serial number 5; (b) persons being other than companies deriving income from sources other than income from business or profession and residing within the territorial area mentioned in column (4) against serial number 5; (a) All functions and powers including functions and powers relating to Tax Deduction at Source under Sections 194E, 195, 196A, 196B, 196C, 196D and 197 of the Incometax Act, 1961 in respect of persons mentioned at item (a) of column (5) against serial number 5. (b) all functions and powers relating to Tax Deduction at Source under Sections 194E, 195, 196A, 196B, 196C, 196D and 197 of the Income Tax Act, 1961 on payments made to nonresidents and foreign companies in respect of persons mentioned at item (b), (c) (d) and (e) against serial number 5; (c) persons being other than companies
13 deriving income from business or profession and whose principal place of business is within the territorial area mentioned in column (4) against serial number 5; (d) persons being companies registered under the Companies Act, 1956 and having registered office or principal place of business in the area mentioned in column (4) against serial number 5; (e) any other person responsible for deducting tax at source under Chapter XVII or Chapter XVII-B of the Income Tax Act, 1961, within the territorial area mentioned in column (4) against serial number 5. 13. This notification was substituted by Direct Tax Notification No.250 dt.28.9.2007 which reads thus: 5 Commissioner of Income-tax (International Taxation), Bangalore, Karnataka Area within the limits of :- Districts of (a) Persons being non-residents including foreign companies within (a) All functions and powers including functions and powers relating to
14 Bangalore Bangalore within the State of Karnataka. the meaning of sub-section (23A) of section 2 of the Income-tax Act, 1961 and having a Permanent Establishment in terms of the applicable Double Tax Avoidance Agreement, in the areas mentioned in column (4) or having a Business Connection or having any source of income accruing or arising or deemed to be accruing or arising in the areas mentioned in column (4); Tax Deduction at Source under Sections 195 and 197 of the Incometax Act, 1961 in respect of persons mentioned at item (a) of column (5). (b) all functions and powers relating to Tax Deduction at Source under Sections 195 and 197 of the Income Tax Act, 1961 on payments made to non-residents and foreign companies in respect of persons mentioned at item (b), (c) (d) and (e) of column (5); (b) persons being other than companies deriving income from sources other than income from business or profession and residing within the territorial area mentioned in column (4); (c) persons being other than companies deriving income from business or profession and whose principal place of business is within the territorial area mentioned in column (4); (d) persons being companies registered under the Companies Act, 1956 and having registered office in the area mentioned in column (4);
15 14. This notification was substituted by Direct Tax Notification No.70 dt. 3.9.2010 which reads thus: 4 Direc tor of Income-tax (International Taxation), Bangalore Bangalore, Karnataka Areas lying within the territorial limit of State of Karnataka, Goa and Andhra Pradesh (a) Persons being non-residents including foreign companies within the meaning of sub-section (23A) of section 2 of the Income-tax Act, 1961 and having a Permanent Establishment in terms of the applicable Double Tax avoidance Agreement, in the areas mentioned in column (4) of having a Business Connection or having any source of income accruing or arising or deemed to be accruing or arising in the areas mentioned in column (4); (b) persons being other than companies deriving income from sources other than income from business or profession and residing within the territorial area mentioned in column (4); (a) All functions and powers including functions and powers relating to Tax Deduction at Source under Sections 194E, 195, 196A, 196B, 196C, 196D and 197 of the Income-tax Act, 1961 in respect of persons mentioned at item (a) of column (5). (b) all functions and powers relating to Tax Deduction at Source under Sections 194E, 195, 196A, 196B, 196C, 196D and 197 of the Income Tax Act, 1961 on payments made to nonresidents and foreign companies in respect of persons mentioned at item (b), (c) (d) and (e) column 5; (c) persons being other than companies deriving income from business or profession and whose principal place of business is within the territorial area mentioned in
16 column (4); (d) persons being companies registered under the Companies Act, 1956 and having registered office or principal place of business in the area mentioned in column (4); (e) any other person responsible for deducting tax at source under Chapter XVII or Chapter XVII-B of the Income Tax Act, 1961, within the territorial area mentioned in column (4) 15. The aforesaid Notifications, therefore, indicate that the DIT(IT), Bangalore is invested with all functions and powers relating to tax deduction at source under Sections 194E, 195, 196A, 196B, 196C, 196D and 197 of the Act, in respect of: (a) persons being non-residents including foreign companies within the meaning of subsection 23(A) of Section 2 of the Act and having a permanent establishment in terms of the applicable Double Tax Avoidance Agreement, in the States of Karnataka, Goa
17 and Andhra Pradhesh having a business connection or having any source of income accruing or arising or deemed to be accruing or arising in the areas mentioned; (b) persons being other than companies deriving income from sources other than income from business or profession and residing in the said areas; (c) persons being other than companies deriving income from business or profession and whose principal place of business is within the aforesaid areas; (d) persons being companies registered under the Companies Act, 1956 and having registered office or principal place of business in the aforesaid areas; (e) any other person responsible for deducting tax at source under Chapter XVII or XVIIB of the Act within the aforesaid areas. Thus the notification supra invests a jurisdiction in the Officer of Income tax department to assess TDS returns in respect of payments made to non-residents with a
18 view to centralize and monitor such returns by the officer, as submitted by the senior counsel for the petitioner. 16. Sl.No.1 of the Direct Tax Notification No.277 dt. 26.9.2006 Annexure-H issued by the Central Board of Direct Taxes exercising jurisdiction under Subsections 1 and 2 of Section 120 of the Act reads thus: Sl.No. Designation Headquarters Jurisdiction of Income Tax authorities (1) (2) (3) (4) 1 Commissioner of Income Tax (LTU) Bangalore Bangalore All cases assigned under section 127 of the Income Tax Act, 1961 (43 of 1961) and which are presently under the jurisdiction of Chief Commissioner of Income Tax I, Bangalore (other than revenue district of Tumkur ) and Chief Commissioner of Income Tax-II, Bangalore (other than revenue district of Kolar) in which Consent Form for opting for the Large Taxpayer Unit scheme has been given and in which following payments have been made in fianancial year 2004-05 or any subsequent financial year: (a) Duties of excise in cash/current account of Rs. Five crore or more under the Central Excise Act, 1944; or (b) Service tax in cash/current account of Rs.five crore or more under the Finance Act, 1994 read with Service Tax Rules, 1994; or (c) Advance tax of Rs.ten crore or more under the Income Tax, 1961. In the notification Annexure-H the Commissioner of Income-tax (LTU) is invested with the jurisdiction to try
19 all cases assigned under Section 127 of the Act from the jurisdiction of the Chief Commissioner of Income Tax-I, Bangalore (other than District of Tumkur) and Chief Commissioner of Income tax-ii, Bangalore (other than District of Kolar) in which consent form for opting the Large Tax Payer Unit Scheme is given and in which the payments have been made in the Financial years 2004-05 or any subsequent financial years towards: a) duties of excise in cash/current account of Rs. Five crore or more under the Central Excise Act, 1944; or b) Service tax in cash/current account of Rs.five crore or more under the Finance Act, 1994 r/w Service Tax Rules; c) Advance tax of Rs.10 crore or more under the Act, 1961. 17. The scheme referred to in the notification Annexure-H is said to be at Annexure-R13 relating to functions, structure and procedure, the relevant portion of which at Clause (IX) reads thus:
20 ix) TDS Returns : All companies are presently filing the quarterly TDS statements and the annual TDS returns electronically through the designated intermediary. The same system would continue after they join the LTU. However, jurisdiction over the TDS returns would shift from the local Commissionerates to the LTU. 18. The notification dt. 25.10.2006 Annexure-R12 states that pursuant to the Board s notification No.277/06 dated 26.9.2006, the Commissioner of IT (LTU) exercising power under Section 120 of the Act directs the Income tax Officer (TDS) (LTU), Bangalore, to exercise powers and perform functions of an assessing officer under Chapter XVII and XVIIB of the Act, in respect of cases assigned under Section 127 of the Act coming within his jurisdiction. 19. In terms of the scheme petitioner submitted its consent in the prescribed form enclosed to the letter dated 30.7.2007 Annexure-R10 indicating thus:
21 a) IT return against PAN No.AAAC14403L is filed before the Addl. Commissioner of Income tax, Range-11; b) TAN No.BLR100560A and TDS returns under Section 194C, 194H, 194I, 194J and 195 are filed before Deputy Commissioner, Income Tax Circle-16. 20. The Commissioner of Income tax, Bangalore exercising jurisdiction under Subsection (2) of Section 127 of the Act transferred the case of the petitioner with PAN No. AAAC14403L from ACIT, Circle-11(4) Bangalore to DCIT (LTU), Bangalore. 21. Admittedly, the DIT(IT) assessed the TDS returns filed by the petitioner in Form No.27Q in respect of tax deducted at source from the payments made to non-residents for the assessment years 2006-07 to 2011-12 and passed an order dt. 14.9.2012, exercising a jurisdiction under notification No.70 dt. 3.9.2010 which is not objected to by the department and is presently subject matter of appeal pending before the
22 Commissioner of (Appeals) and therefore, it cannot be said that the order suffers from lack of jurisdiction. I say so because to a question of this court as to how the said DIT (IT) invoked the jurisdiction which the Income Tax Department had permitted despite the petitioner s consent, learned counsel for the revenue submits that there has been a mistake. If that is so, the mistake has not been corrected till date and therefore, the assessments by the DIT(IT) cannot be said to be either illegal or one without jurisdiction. 22. Indeed, the IT Officer, LTU having processed petitioner s returns for the assessment years 2006-07 through to 2009-10, passed orders of even date 28.3.2011 Annexures-R1 to R4 which are carried in appeal before the Income tax Appellate Tribunal on the premise of jurisdiction of the officer to assess the returns filed in Form 26Q in respect of residents and 27Q in respect of non-residents.
23 23. The DIT(IT) having exercised a jurisdiction vested in him in respect of TDS returns, since not transferred, under the order dated 7.11.2007, Annexure R11, the IT Officer LTU was not invested with the jurisdiction to process the TDS returns filed by the petitioner in Form No. 27Q relating to non-residents. 24. Petitioner though extended its consent by filing the Form prescribed, Annexure-R10, to be administered under the Large Tax Payer Unit by furnishing details of the returns with registration number and TAN allotted in respect of TDS returns and statement filed with the DIT (IT) having jurisdiction, in terms of the scheme Annexure-R13 however the order dated 7.11.2007 Annexure-R11 makes reference to a transfer of the case relating to PAN number of the petitioner to the DCIT (LTU), Bangalore but makes no mention of TAN number in respect of returns and statements of TDS from payments made to both non-
24 residents and residents. In the light of the notification Annexure H investing a jurisdiction in IT Officer (LTU) consequent upon the consent of the petitioner in terms of the scheme, Annexure R13, it is impermissible to accept the submission of the learned senior counsel that in terms of the Notification No.70 dated 3.9.2010 Annexure-G, it is the DIT (IT) alone has jurisdiction over returns filed by the petitioner in Form No.27Q relating to TDS from payments to non-residents. 25. It may be true that the DIT(IT) has all the information relating to TDS deduction from payment made to non-residents with a view to make cross reference with those non-residents, since, it is the case of the respondents that only in the month of May 2012 that the statements available with the DIT(IT) pertaining to the petitioner was transferred to the IT Officer (LTU). Hence it is too far fetched to contend that the notification No.70 dated 3.9.2010 Annexure-G
25 provides for exclusion of the jurisdiction of the IT Officer (LTU) in respect of TDS from payments made to nonresidents. The notification, Annexure-H is in force without substitution, modification or reference to the notifications Annexure-G. In the circumstances, the submission that the jurisdiction of the IT Officer (LTU) stood denuded on coming into force of the notification No.70 dated 3.9.2010, in respect of returns filed in Form No.27Q over TDS from payments made to nonresidents is unacceptable. 26. In the view taken supra, it is but axiomatic that the DIT (IT) having processed the returns for the years 2006-07 to 2011-12, in From No. 27Q in respect of TDS from payments made to non-residents, and orders passed on 14.09.2012 exercising jurisdiction under Notification No. 70 dated 03.09.2010 Annexure G (though said to be a mistake according to counsel for the revenue), the IT Officer(LTU) did have no jurisdiction
26 to process the very same returns. In other words, no two Officers can process the returns filed by the petitioner in respect of TDS from payments made to non residents and hence the Orders, Annexures-R1 to R4 of the IT Officer (LTU), though not called in question in this petition, insofar as they relate to returns in Form No.27Q pertaining to TDS from payments made to nonresidents stands annulled. Sequentially the show cause notice Annexure-A issued by the IT Officer(LTU) calling upon the petitioner to furnish information over the returns in Form No.27Q for the years 2009-10 to 2011-12 is one without jurisdiction. 27. The questions formulated at (i) to (iii) supra, are answered accordingly. 28. The question No.(iv) being a mixed question of law and fact is left open for consideration by the authority concerned, regard being had to Section 201(3) of the Act.
27 In the result, these petitions are allowed in part. The show cause notice, Annexure-A followed by the order dt. 25.2.2013 Annexure-F of the 1 st respondent in respect of financial years 2009-10 to 2011-12 insofar as returns in Form No.27Q over TDS from payments made to non-residents is quashed. It is hereby declared that the proceeding initiated by the 1 st respondent under Section 201(1) and 201(1A) of the Act in respect of the aforesaid returns are without jurisdiction. ln Sd/- JUDGE