Madras High Court
The Principal Commissioner Of Income ... vs M/S.Cholamandalam Ms General ... on 9 January, 2025
Author: Anita Sumanth
Bench: Anita Sumanth
2025:MHC:1038
T.C.A.No.193 of 2023 etc
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.01.2025
CORAM :
THE HONOURABLE DR.JUSTICE ANITA SUMANTH
and
THE HONOURABLE MR.JUSTICE G. ARUL MURUGAN
T.C.(A).Nos. 193, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184,
192, 195, 196 & 197 of 2023
and
C.M.P.Nos. 575, 584, 588, 596, 607, 614, 624 & 637 of 2025
C.M.P.Nos.792 to 797, 799 and 800 of 2025
The Principal Commissioner of Income Tax – 4,
Chennai. .. Appellant
In all appeals
vs
M/s.Cholamandalam MS General Insurance
Company Ltd.,
No.2, Dare House, NSC Bose Road,
Chennai – 600 001.
PAN : AABCC6633K .. Respondent
In all appeals
Prayer in TC(A) No. 193 of 2023: Appeal filed under Section 260A of
the Income Tax Act, 1961 against the order of the Income Tax Appellate
Tribunal Madras 'C' Bench, Chennai dated 26.08.2022 in ITA
No.2146/Chny/2008 for assessment year 2005 – 06.
Prayer in TC(A) No. 174 of 2023: Appeal filed under Section 260A of
the Income Tax Act, 1961 against the order of the Income Tax Appellate
1/35
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Tribunal Madras 'C' Bench, Chennai dated 26.08.2022 in ITA
No.949/Chny/2018 for assessment year 2010 – 11.
Prayer in TC(A) No. 175 of 2023: Appeal filed under Section 260A of
the Income Tax Act, 1961 against the order of the Income Tax Appellate
Tribunal Madras 'C' Bench, Chennai dated 26.08.2022 in ITA
No.2276/Chny/2014 for assessment year 2009 – 10.
Prayer in TC(A) No. 176 of 2023: Appeal filed under Section 260A of
the Income Tax Act, 1961 against the order of the Income Tax Appellate
Tribunal Madras 'C' Bench, Chennai dated 26.08.2022 in ITA
No.783/Chny/2018 for assessment year 2010 – 11.
Prayer in TC(A) No. 177 of 2023: Appeal filed under Section 260A of
the Income Tax Act, 1961 against the order of the Income Tax Appellate
Tribunal Madras 'C' Bench, Chennai dated 26.08.2022 in ITA
No.788/Chny/2018 for assessment year 2010 – 11.
Prayer in TC(A) No. 178 of 2023: Appeal filed under Section 260A of
the Income Tax Act, 1961 against the order of the Income Tax Appellate
Tribunal Madras 'C' Bench, Chennai dated 26.08.2022 in ITA
No.782/Chny/2018 for assessment year 2013 – 14.
Prayer in TC(A) No. 179 of 2023: Appeal filed under Section 260A of
the Income Tax Act, 1961 against the order of the Income Tax Appellate
Tribunal Madras 'C' Bench, Chennai dated 26.08.2022 in ITA
No.951/Chny/2018 for assessment year 2013 – 14.
Prayer in TC(A) No. 180 of 2023: Appeal filed under Section 260A of
the Income Tax Act, 1961 against the order of the Income Tax Appellate
Tribunal Madras 'C' Bench, Chennai dated 26.08.2022 in ITA
No.711/Chny/2020 for assessment year 2014 – 15.
Prayer in TC(A) No. 181 of 2023: Appeal filed under Section 260A of
the Income Tax Act, 1961 against the order of the Income Tax Appellate
Tribunal Madras 'C' Bench, Chennai dated 26.08.2022 in ITA
No.1350/Chny/2013 for assessment year 2008 – 09.
2/35
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Prayer in TC(A) No. 182 of 2023: Appeal filed under Section 260A of
the Income Tax Act, 1961 against the order of the Income Tax Appellate
Tribunal Madras 'C' Bench, Chennai dated 26.08.2022 in ITA No.
40/Chny/2009 for assessment year 2005 – 06.
Prayer in TC(A) No. 183 of 2023: Appeal filed under Section 260A of
the Income Tax Act, 1961 against the order of the Income Tax Appellate
Tribunal Madras 'C' Bench, Chennai dated 26.08.2022 in ITA No.
1621/Chny/2011 for assessment year 2007 – 08.
Prayer in TC(A) No. 184 of 2023: Appeal filed under Section 260A of
the Income Tax Act, 1961 against the order of the Income Tax Appellate
Tribunal Madras 'C' Bench, Chennai dated 26.08.2022 in ITA No.
950/Chny/2018 for assessment year 2010 – 11.
Prayer in TC(A) No. 192 of 2023: Appeal filed under Section 260A of
the Income Tax Act, 1961 against the order of the Income Tax Appellate
Tribunal Madras 'C' Bench, Chennai dated 26.08.2022 in ITA No.
1676/Chny/2011 for assessment year 2007 – 08.
Prayer in TC(A) No. 195 of 2023: Appeal filed under Section 260A of
the Income Tax Act, 1961 against the order of the Income Tax Appellate
Tribunal Madras 'C' Bench, Chennai dated 26.08.2022 in ITA No.
1759/Chny/2011 for assessment year 2006 – 07.
Prayer in TC(A) No. 196 of 2023: Appeal filed under Section 260A of
the Income Tax Act, 1961 against the order of the Income Tax Appellate
Tribunal Madras 'C' Bench, Chennai dated 26.08.2022 in ITA No.
1620/Chny/2011 for assessment year 2006 – 07.
Prayer in TC(A) No. 197 of 2023: Appeal filed under Section 260A of
the Income Tax Act, 1961 against the order of the Income Tax Appellate
Tribunal Madras 'C' Bench, Chennai dated 26.08.2022 in ITA No.
1366/Chny/2013 for assessment year 2008 – 09.
3/35
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For Appellant : Mrs.V.Pushpa
Senior Standing Counsel
(in all cases)
For Respondent : Dr.S.Muralidhar,
Senior Counsel
For Mr.Sandeep Bagmar
(in all cases)
COMMON JUDGMENT
(Delivered by Dr. ANITA SUMANTH.,J)
This common order is passed in respect of 16 appeals filed by the
Revenue for Assessment Years (A.Ys) 2005-06 to 2014-15 and arising
from order of the Income Tax Appellate Tribunal (in short 'Tribunal')
dated 26.08.2022. The following substantial questions of law arise for
consideration in these appeals.
1. Whether on the facts and in the circumstances of the case,
the Tribunal was justified in holding that the Assessee was not
liable to deduct tax at source on the payments made to
surveyors outside the Country and that they are not taxable in
India?
(T.C.(A) Nos.182, 193, 195, 196, 183, 192, 181, 197, 175, 174,
176, 177, 184, 178, 179 and 180, of 2023 – A.Ys. 2005-06,
2006-07, 2007-08, 2008-09, 2009-10, 2010-11, 2013-14 and
2014-15).
2. Whether on the facts and in the circumstances of the case,
the Tribunal was justified in holding that assessee is not liable
to deduct the tax at source towards the commission paid for
receipt of reinsurance premiums?
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(T.C.(A) Nos.182, 193, 195, 196, 183, 192, 181, 197, 175, 174,
176, 177, 184, 178, 179 and 180, of 2023 – A.Ys. 2005-06,
2006-07, 2007-08, 2008-09, 2009-10, 2010-11, 2013-14 and
2014-15).
3. Whether on the facts and in the circumstances of the case,
the Tribunal was justified in holding that the profit on sale of
investment is exempt ignoring the fact that the profits realized
from investments are real and hypothetical ?
(T.C.(A) Nos. 197, 175, 174, 176, 177 and 184 of 2023 –
A.Ys. 2008-09, 2009-10, and 2010-11).
4. Whether on the facts and in the circumstances of the case,
the Tribunal was justified in holding that UPS is part of the
computer entitled to higher depreciation at 60% and not 15%
which the AO had restricted being the rate applicable to plant
and machinery ?
(T.C.(A) Nos. 174, 176, 177, 184, 178 and 179 of 2023 –
A.Y.2010-11 and 2013-14)
5. Whether the deduction u/s.14A of the Income tax Act stand
excluded while computing income of an insurance companies
in view of Section 44 of the Income tax Act, 1961?
(T.C.(A) Nos. 174, 176, 184, 177, 178, 179, 180 of 2023 –
A.Y.2010-11, 2013-14 and 2014-15).
6. Whether on the facts and in the circumstances of the case,
the Tribunal was justified in holding that the Assessee is
entitled for a higher rate of deprecation at 50% on motor
vehicles, especially when Appendix -I appended for Rule 5 of
the Income tax Rules 1962 provides for higher rate of
depreciation only if the vehicles are used in the business of
running them on hire which is not the case on hand?
(T.C.(A) Nos. 174, 176, 184, 177, 178, 179 of 2023 –
A.Y.2010-11 and 2013-14).
7. Whether on the facts and in the circumstances of the case,
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the Tribunal was justified in holding that the provision of
Section 115JB of the Act which enables the Company to
compute the book profits are not applicable to insurance
companies? (T.C.(A) Nos. 174, 176, 184, 177, 178, 179, 180
of 2023 – A.Y.2010-11, 2013-14 and 2014-15).
2. The substantial question of law admitted on 18.04.2023, in
T.C.(A).Nos.193, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184,
192, 195, 196 & 197 of 2023 reads as follows:
Whether on the facts and in the circumstances of the
case, the Tribunal was justified in holding that UPS is part of
the computer entitled to higher depreciation at 60% and not
15% which the AO had restricted being the rate applicable to
plant and machinery ?
3. Both learned counsel agree that many of the issues that arise for
consideration have been answered by the Supreme Court or this Court
and hence, stand covered by virtue of those judgements.
4. The substantial questions of law in regard to the issue of profit
on sale of investments are answered in favour of the assessee in light of
the judgement of the Supreme Court in Commissioner of Income-Tax v
United India Insurance Co1 affirming the decision of this Court in
Commissioner of Income-Tax v United India Insurance Co2. The
1 (2020) 117 taxmann.com 849(SC)
2 (2019) 111 taxmann.com 217 (Madras)
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relevant paragraphs read thus:
6.So far as the first substantial question of law is concerned,
viz., profit on sale of investments whether it is exempt or not,
the issue came up for consideration before the High Court of
Delhi in the case of Oriental Insurance Co. Ltd., vs. Deputy
Commissioner of Income-tax reported in [2017] 84 taxmann.
com 312 (Delhi). The Court analysed Rule 5(b) of the First
Schedule to the Act, which stood omitted by Finance Act, 1988
and was re-introduced by Finance Act, 2009 with effect from
1st April, 2011. It was pointed out that the rationale for omit
ting Rule 5(b) was to exempt profits and gains in investments
by the General Insurance Corporation of India and the four
companies formed under Section 16 of the General Insurance
Business (Nationalisation) Act, 1972. After referring to the
relevant provisions, the explanation offered in the memoran
dum to the Finance Bill, 1988, and the circular of the CBDT
in Circular No.528, dated 16.12.1988, the Court held as fol
lows:-
“38.Thus, the major change, therefore, sought to be
brought about by the 2009 amendment was to align
it with the IRDA Regulations regarding preparation
of accounts of general insurance companies. The
changed norms, in terms of said Regulations, re
quired a non-life insurance company to include in
its Profit and Loss ('P & L') Account or Revenue Ac
count “profit or loss on realisation/sale of invest
ment”. This was said to be consistent with the inter
national standards.
39.With the Assessee carrying on a general insur
ance business, it was bound by the provisions of the
IA as well as the IRDA Regulations referred to
hereinbefore. Even the CBDT, in its Circular
No.5/2010 dated 3rd June, 2010, acknowledged
that, after the introduction of the IRDA Regulations
in 2002, non-life insurance companies are required
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to credit income from the sale of investments direct
ly to the P&L Account. This requirement, which
would make the income so earned amenable to tax,
was made applicable only from AY 2011-12. Prior
to 1st April, 2011, there was no provision which re
quired the Revenue to disallow the deduction of loss
on sale of investments.”
7.In terms of the above decision, prior to 1st April, 2011, there
was no provision which required the Revenue to disallow the
deduction of loss on sale of investments.
8.In the respondent/assessee's case, identical view was taken
by the Commissioner of Income-tax (Appeals), Large Taxpay
er Unit, Chennai (for brevity, “the CIT(A)”), and the order
was confirmed by the Tribunal. The finding in favour of the
assessee was on the ground that prior to 1st April, 2011, there
was no provision which required the Revenue to disallow the
deduction of loss on sale of investments.
9.We respectfully agree with the view taken by the High Court
of Delhi in Oriental Insurance Co. Ltd. (supra). Accordingly,
the first substantial question of law is answered against the
Revenue.
5. We have had occasion to deal with the same issue, ‘profit on
sale of investments’ in Commissioner of Income Tax –LTU V. Royal
Sundaram Alliance Insurance Company Ltd.3, wherein we have held as
follows:
14. The admitted facts in this matter are that the as
sessee is an Insurance Company, which is bound to follow the
method of computation as set out under Section 44 read with
Rule 5(b) of the First Schedule to the Act. Rule 5, specifically
clause (b) thereof, has been subject matter of amendment
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over the years in that the aforesaid clause stood deleted with
effect from 1988 and restored with effect from 01.04.2011
(A.Y.2011-12). We are concerned with the applicability of the
said clause for the interregnum period.
15. The purport behind clause (b) to Rule 5 was clear,
to either include or exclude profits/losses from sale of invest
ments, specific to insurance businesses. With the deletion of
that clause for the periods 1988 to 2011, there is no justifica
tion whatsoever to continue to tax profits/losses from sale of
investments. Such an interpretation would result in reading
clause (b) as continuing on the stature book, even for a peri
od when it had stood deleted.
16. This very issue had come up for consideration be
fore this Court in Commissioner of Income Tax V. United In
dia Insurance Company4. The co-ordinate Bench of this
Court noted the decision of the Delhi High Court in the case
of Oriental Insurance Co. Ltd V. Deputy Commissioner of In
come-Tax5, wherein the purpose of omitting Rule 5(b) was
specifically noticed.
17. That apart, the operative portion of CBDT Circu
lar dated 16.12.1988 touching upon this aspect is also rele
vant and is extracted below:
CBDT Circular No .528 dated 16.12.1988
....
Liberalisation of provisions in respect of taxation of
profits and deduction of tax at source applicable to
the General Insurance Corporation and its sub
sidiaries
45.1 Under the existing provisions of s. 44 of the IT
Act, the profits and gains of any Insurance business is
4 2019-111 Taxman.com 217 (Mad)
5 (2018) 407 ITR 658
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computed in accordance with the rules contained in
the First Schedule to the Act. Under r. 5 of this Sched
ule, profits and gains of any business of insurance oth
er than life insurance are taken to be balance of profits
disclosed in the annual accounts furnished to the Con
troller of Insurance subject to certain adjustments.
One of the adjustments provided therein is in respect
of any amount either written off or reserved in the ac
counts to meet depreciation or loss on the realisation
of investment which is to be allowed as deduction. Sim
ilarly, any sum credited to the account, due to appreci
ation of or gain on the realisation of investment, is tak
en as part of the profits and gains of the business. To
enable the General Insurance Corporation and its sub
sidiaries to play a more active role in capital markets
for the benefit of policy holders, the Finance Act has
amended sub-r.(b) of R. 5 of the First Schedule to pro
vide for exemption of the profits earned by them on the
sale of investment. As a corollary, it has also been pro
vided that the losses Incurred by the General Insur
ance Corporation on the realisation of the investment
shall not be allowed as a deduction in computing the
profits chargeable to tax.
45.2 This amendment will take effect from the 1st
April, 1989, and will accordingly, apply in relation to
the asst. yr. 1989-90 and subsequent years.
6. Coming to the issue relating to MAT/115 JB on Insurance
Companies, the said issue is answered in favour of the assessee in light
of the decision of the Madras High Court in CIT V. Royal Sundaram
Alliance Insurance Co. Ltd.6 The relevant paragraphs read thus:
2.MAT/115JB On Insurance Companies:
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7.We have perused the order passed by the Commissioner
of Income Tax (Appeals) (CIT(A)) as well as the Tribunal.
As rightly pointed out by the Tribunal, the Insurance
Companies prepare profit and loss account as per the
guidelines issued by the Insurance Regulatory and
Development Authority of India and not as per Part II and
III of Schedule VI of Companies Act.
Furthermore, the applicability of Schedule VI of the Com
panies Act was specifically excluded in respect of Insurance
Companies. The revenue has not been able to dislodge this
finding before us in these appeals. We find that the conclu
sion arrived at by the Tribunal in this regard is proper and
valid. Accordingly, the appeals filed by the revenue on this
ground are dismissed and consequently, the above substan
tial question of law is answered in favour of the assessee.
7. The substantial questions of law in regard to the issue relating to
Commission paid for receipt of re-insurance are also answered in favour
of the assessee in light of the decision of the Madras High Court in Royal
Sundaram Alliance Insurance Co. Ltd. (supra). The relevant paragraphs
read thus:
Commission for receipt of reinsurance:
11.The assessee had succeeded on this issue before the
CIT(A) and the finding has been affirmed by the Tribunal.
The CIT(A) took note of the decision taken in the assessee's
own case for the assessment year 2009-2010 in which the as
sessment for the year 2008-2009 was followed and the as
sessee succeeded before the CIT(A) for the assessment year
2008-2009, wherein the CIT(A) noted that as a matter of in
dustrial practice it was termed as "commission on reinsur
ance premium received", however, in substance it is discount
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on re-insurance premium received by an Insurance Company
from another Insurance Company. We find that the Tribunal
rightly decided the issue in favour of the assessee and the
revenue has not brought out any ground to interfere with the
said finding. Accordingly, the appeals filed by the revenue on
this ground are dismissed and consequently, the substantial
question of law is answered against the revenue.
8. The substantial questions of law in regard to the issue relating to
TDS on payments made to surveyors outside the Country have been
considered earlier and are answered in favour of the assessee in light of
the decision in Royal Sundaram Alliance Insurance Co. Ltd. (supra), the
relevant paragraphs reading thus:
TDS on Survey Fees:
12.Ms.V.Pushpa, learned Senior Standing Counsel would
vehemently contend that the fee has been paid for utilizing
the expertise of the surveyor and therefore, tax has to be
deducted at source.
13.We have heard Mr.Sandeep Bagmar, learned counsel for
the assessee on the said issue.
14.As rightly held by the Tribunal, the surveyor who has been
engaged to assess the damage to the goods in transit does not
have a permanent establishment in India. Furthermore, the
surveyor does not share his knowledge for assessing the
damage of goods and this aspect is never made known to the
assessee. In fact, the assessee succeeded before the CIT(A) on
this issue pertaining to the assessment year 2010-2011. The
assessee's contention in the said appeal was that M/s.Royal &
Sun Alliance, U.K. does not have a permanent establishment
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in India, the survey fee paid for the service rendered in U.K.
is not taxable in India as per DTAA. Further, it was
contended that reimbursements do not partake the character
of income which is chargeable to tax and therefore do not
warrant withholding of tax on the same. The assessee relied
on the following decisions in support of this proposition:
1.CIT v. Siemens Aktiongesellschaft 220 CTR 425 (Bombay)
2.CIT v. Industrial Engineering 202 ITR 1014 (Delhi)
15.The CIT(A) on going through the contentions raised by the
assessee pointed out that disallowance under Section
40(a)(i) can be made only if taxes are not withheld on income
chargeable to tax in India. On facts, it held that the payment
was made to Royal and Sun Alliance, U.K. to settle the
amounts of various surveyors on cost to cost basis and the
surveyor does not make available any technical knowledge
which can independently be applied by the assessee and
consequently, held that the payment by the assessee would
not be taxable as fees for technical services in the hands of
the recipient.
Furthermore, it is noted that in the absence of permanent es
tablishment, the income in the hands of the recipient is also
not taxable in India. The above view taken by the CIT(A) was
rightly affirmed by the Tribunal and we find that the revenue
has not made out any grounds to interfere with the said find
ing. Accordingly, the appeals filed by the revenue on this
ground are dismissed and consequently, the above substan
tial question of law is answered against the revenue.
9. The substantial questions of law in regard to the issue of
Depreciation on UPS are also answered in favour of the assessee in light
of the decision of the Madras High Court in T.V.Sundaram Iyengar &
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Sons Ltd vs The Commissioner Of Income Tax7 The relevant paragraphs
read thus:
4. As regards the third question of law, the learned
counsel for the appellant fairly submitted that the same
has already been considered and decided by this court
by order dated 18.01.2019 in TCA No.23 of 2019,
wherein, it was held that the assessee would be entitled
to depreciation at 60% on UPS and Voltage Stabilizer,
the relevant paragraphs of which are usefully repro
duced below:
"4...with regard to the rate of depreciation
that can be claimed for UPS and Routers, the
Tribunal in the impugned order relied upon
earlier decision of the Chennai Tribunal as
well as the decision of the High Court of Delhi
in the case of CIT vs. Oriental Ceramics and
Industries Limited reported in (2013) 358 ITR
49 (Del.) and held that the assessee would be
entitled to depreciation at 60%. Therefore, we
are of the considered view that the finding
rendered by the Tribunal is just and proper.
5. An UPS which is capable of giving uninterrupted
power supply for a computer of a stipulated period has
not been established to have a independent usage by
placing any material. If the revenue disputes that the
UPS can independently function, then the Assessing
Officer should have material to the said effect. We are
informed that the configuration of the power output for
the UPS is designed to suit the equipment for which it
shall supply uninterrupted power. Similarly, Routers
also are to be considered as an integral part of
computer.
6. This Court had an occasion to consider as to whether
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the printers are eligible for depreciation at 60%. In the
case of CIT vs. Cactus Imaging India (P) Ltd., reported
in [2018] 406 ITR 406 (Mad) and held that the assessee
was entitled to depreciation at 60%. We find that there
is no finding recorded by the Tribunal on the said head.
Accordingly, Substantial Question of Law No.1 stands
rejected. "
Therefore, the learned counsel agreed that the depreci
ation value of the UPS and stabilizer can be fixed at
60% instead of 100% as claimed by the assessee.
5. There is no serious objection on the side of the re
spondent/revenue on the above submissions made by
the learned counsel for the petitioner.
6. In the light of the aforesaid decisions and taking note
of the submissions made by the learned counsel appear
ing for both sides, we hold that the questions of law 1
and 2 are decided in favour of the assessee and against
the revenue; and the third question of law is decided to
the effect that the assessee is entitled to the depreciation
at 60% as against 25% assessed by the respondent /
revenue.
10. Coming to the substantial questions of law in relation to
disallowance under Section 14A, the Tribunal has concluded the issue
adverse to the assessee holding that Rule 5(a) militates against the grant
of expenses, which are not for the purposes of insurance business and,
directing that the same are to be added back.
11. The Assessing Authority, in the course of assessment, had
disallowed the expenditure on the ground that it relates to income which
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is exempt and applying the computational methodology in Rule 8D.
However, there was no impact, since the profit on sale of investments
had been taxed as income from regular business activity.
12. By virtue of the present order, we have allowed the issue in
relation to profit on sale of investments in favour of the assessee, and
hence there would be a revenue impact by virtue of the disallowance
under Section 14A.
13. The assessees arguments are that the computational
methodology governing them are set out under Section 44 read with Rule
5 of the First Schedule to the Act and hence there would be no
application of Section 14A to their case.
14. Section 44 as well as Rule 5 of the First Schedule are
extracted below:
44. Insurance business.
Notwithstanding anything to the contrary contained in the
provisions of this Act relating to the computation of income
chargeable under the head "Interest on securities", "Income
from house property", "Capital gains" or "Income from other
sources", or in section 199 or in sections 28 to 43-B, the
profits and gains of any business of insurance, including any
such business carried on by a mutual insurance company or
by a co-operative society, shall be computed in accordance
with the rules contained in the First Schedule.
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B.—Other insurance business
Computation of profits and gains of other insurance
business.
5. The profits and gains of any business of insurance other
than life insurance shall be taken to be the profit before tax
and appropriations as disclosed in the profit and loss account
prepared in accordance with the provisions of the Insurance
Act, 1938 (4 of 1938) or the rules made thereunder or the
provisions of the Insurance Regulatory and Development
Authority Act, 1999 (4 of 1999) or the regulations made
thereunder, subject to the following adjustments:—
(a) subject to the other provisions of this rule, any expenditure
or allowance including any amount debited to the profit and
loss account either by way of a provision for any tax,
dividend, reserve or any other provision as may be prescribed
which is not admissible under the provisions of sections 30 to
43B in computing the profits and gains of a business shall be
added back;
(b) (i) any gain or loss on realisation of investments shall be
added or deducted, as the case may be, if such gain or loss is
not credited or debited to the profit and loss account;
(ii)any provision for diminution in the value of investment
debited to the profit and loss account, shall be added
back;
(c) such amount carried over to a reserve for unexpired risks
as may be prescribed in this behalf shall be allowed as a
deduction.
Provided that any sum payable by the assessee under section
43B, which is added back in accordance with clause (a) of
this rule, shall be allowed as deduction in computing the
income under the said rule in the previous year in which such
sum is actually paid.
15. Section 14A states that no deduction shall be allowed in
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respect of the expenditure incurred by the assessee in relation to income
which does not form part of the total income under the Act. However, in
framing of assessments in the case of insurance companies, it is purely
Section 44 read with Rule 5 of the First Schedule that would apply.
16. This position is made clear by Section 44 itself which says that
the methodology for computation shall be as per Rule 5 of the First
Schedule that excludes specifically the application of Sections 28 to 43B
and Section 199 of the Act. We are thus of the considered view that in a
specialised assessment of this nature, where the methodology for
computation is not as stipulated under Section 28 to 43B, there is no role
for Section 14A at all.
17. The fact that such an assessment would stand outside the ambit
of application of Section 14A is made clear by the non-obstante clause
contained in Section 44 which states that notwithstanding anything to the
contrary contained in this Act relating to the computation of income
chargeable under the heads of interest on securities, house property,
Capital gains or other sources, or Section 199 or Sections 28 to 43B
dealing with the computation of business income, the assessment of
insurance business would be in accordance with the Rules contained in
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the First Schedule alone.
18. Rule 5 of the First Schedule provides for a self-contained
methodology for computation of profits and gains of other insurance
businesses. It sets out the manner by which the profits and gains of other
insurance business would be computed and stipulates specifically what
the adjustments are, that are to be made to the profit before tax and
appropriations as per the profit and loss account prepared in accordance
with the Insurance and IRDA Acts and the Rules and Regulations.
19. Clause (a) of Rule 5 is specific in that, the expenditure or
allowances inadmissible under the provisions of Sections 30 to 43B in
computing profits and gains of the business are to be added back. Clause
(b) states that gain or loss on realisation of investments, if not credited or
debited to profit and loss account, shall be added back, and similarly,
provision for diminution in the value of investments debited to profit and
loss account are to be added back. Clause (c) states that any amounts
carried over to a reserve for unexpired risks as may be prescribed are to
be allowed as a deduction.
20. Barring the aforesaid adjustments, there can be no other
adjustments contemplated to the scheme of computation of profits and
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gains of other insurance businesses. Reference to Section 14A thus does
not arise in the context of such computation. In the scheme as we have
set out above, the legislative intent is clear, to put in place a distinct and
different scheme for computation of profits from other insurance
business. The substantial question of law in relation to this issue is thus
answered in favour of the assessee and against the revenue.
21. The issue in regard to depreciation at 50% on motor vehicles
does not arise and the learned counsel does not pursue the same. Hence,
this question is returned as unanswered.
22. With this, these appeals ought to have been closed except for
the submission by learned Senior Standing Counsel that although
grounds of appeal had been filed in respect of liability under Section
40(a)(i) of the Income Tax Act, 1961 (in short ‘Act’), substantial
questions of law had been omitted to be raised.
23. We had hence granted opportunity to the Department to file
applications seeking admission of those issues in terms of Section 260(3)
of the Act. Thereafter, Miscellaneous Petitions numbering 16 have been
filed, of which 8 have been numbered and listed today (C.M.P.Nos. 575,
584, 588, 596, 607, 614, 624 & 637 of 2025). The remaining 8 are listed
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under a special list today (C.M.P.Nos.792 to 797, 799 and 800 of 2025).
A common counter has been filed to all the Miscellaneous Petitions.
Hence, this order disposes all Miscellaneous Petitions also.
24. The substantial questions of law that are sought to be admitted
now are as follows:
1. Whether on facts and circumstances of the case, was the
Hon’ble Tribunal right in holding that the re-insurance
premium ceded to NRRs are not liable to be taxed under the
Indian Income Tax Act?
2. Whether on facts and circumstances of the case, was the
Hon’ble Tribunal right in deleting the additions made by the
Ld. AO towards disallowance of reinsurance premium ceded to
NRRs under Sec.40(a)(i) of the Act, for non-deduction of TDS
under Sec.195 of the Act?’
25. We have heard Dr.S.Muralidhar, learned Senior Counsel for
Mr.R.Sandeep Bagmar for the appellant and Mrs.V.Pushpa, learned
Senior Standing Counsel for the Income Tax Department.
26. The Department pleads that the above substantial questions of
law have inadvertently been omitted from being raised in the original
appeal memorandum. Our attention is drawn to the order of the Tribunal
impugned in these appeals, to state that the issue relating to liability
under Section 40(a)(i) does arise from that order. That apart, it is a legal
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issue on which a resolution is required. Grounds of appeal have also been
raised. Hence, the Department would urge that the substantial questions
of law may be admitted for resolution.
27. Per contra, the submissions of the learned Senior Counsel are
to the effect that raising of substantial questions of law now, at a distance
of more than two years from the date of institution of the appeals, is
wholly unwarranted and unjustified.
28. The proceedings for assessment for the subsequent years
would indicate acquiescence by the Department that there was no
liability under Section 40(a)(i). Our attention is drawn to the orders of
assessment for AY 2020-21, 2021-22 and 2022-23 dated 19.09.2022,
19.02.2024 and 27.02.2024 respectively. As far as order of assessment
dated 19.09.2022 is concerned, this is what the Assessing Officer has
stated in regard to the liability under Section 40(a)(i):
Thus, to sum up the above issue, the
jurisdicational Madras HC in its order dated 12.12.2018
observed that reinsurance premium ceded to the non-
resident companies cannot be disallowed u/s 37(1). This
decision was upheld by Hon’ble SC who also dismissed
the SLP filed by dept against Madras HC judgment.
Further the SC set aside the issue to ITAT to decide the
allowability of reinsurance premium ceded to the non-
resident companies under S 40(a)(i).
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The ITAT in its judgment dated 26.08.22 observed
that payments made to NRR cannot be disallowed u/s
40(a)(i). Therefore, in view of the above, this issue has
reached legal finality that payments made to NRR cannot
be disallowed u/s 40(a)(i). Therefore, no disallowance
made on this issue.
29. Clearly, there has been application of mind by the Assessing
Officer to the issue under Section 40(a)(i) culminating ultimately in an
order in favour of the Assessee. As far as the remaining assessment years
are concerned, the Assessing Officer has accepted the claim without
question and has not even thought it necessary to refer to Section 40(a)(i)
in the assessment order.
30. This would indicate wholehearted acceptance of the
Department in regard to the non-applicability of Section 40(a)(i) and
there is thus no justification in the Department seeking to re-open that
very issue now, that too for the previous years.
31. In respect of assessment year 2020-21, proceedings were
initiated under Section 263 of the Act for revision of assessment.
Notably, the Commissioner of Income Tax did not believe it necessary
to advert to the issue in regard to Section 40(a)(i). A copy of order under
Section 263 dated 20.11.2024 is placed before us that illustrates that the
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Commissioner of Income Tax has proceeded only on other issues,
extraneous to Section 40(a)(i) of the Act.
32. Incidentally, it is the same Commissioner of Income Tax who
has also filed the present Miscellaneous Petitions seeking admission of
the substantial questions of law.
33. The question of liability under Section 40(a)(i) has been a
matter of litigation for various assessment years between 2003-04 to
2010-11. In the assessments framed originally for those assessment
years, the Assessing Authority proceeded on the basis that the assessee
ought to have deducted tax under Section 195 of the Act, effecting
disallowance under Section 40(a)(i) of the Act.
34. In appeal before the Income Tax Appellate Tribunal, the
Tribunal, by its order dated 09.05.2012 proceeded on a tangent, holding
that the ceding of the payments of re-insurance to non-residents was
itself contrary to law. Hence the claim of the assessee under Section 37
was disallowed. The matter was remanded to the Assessing Officer to be
re-done de novo.
35. Appeals were filed before this Court in T.C.(A)Nos.361 of
2012 etc. batch, which were come to allowed on 17.06.2013 in the
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following terms:
’18. We may point out that the order of the Tribunal
makes no mention at all as to what were the documents
filed before the Tribunal as by way of fresh document,
necessitating remand. In the background of the facts
pleaded and admitted by the Revenue, we set aside the
order of the Tribunal and remand the appeal to the
Tribunal to bestow its attention in all sincerity to the
issues raised by the Revenue as well as by the asessees in
their appeals and pass orders in accordance with law.
This would include consideration of the relevance of the
retrospective amendment to Section 9 of the Income Tax
Act after the Vodafone Case to the facts of the case. Thus
taking note of the submissions of the learned senior
counsel appearing for the assessee and the learned
standing counsel appearing for the Revenue, particularly
on the amendment to the Act consequent on the Vodafone
case, we direct the Income Tax Appellate Tribunal to
consider the case of the assesses afresh on the materials
placed and the effect of the amended provision on the
assessees’ cases. It is open to the assesses to file such
additional grounds on the points of law before the
Tribunal for a full-fledged hearing on the issues raised.”
36. In remand, orders were passed on 31.07.2018 by the Tribunal
that travelled to the High Court in Tax Case (Appeals) No.754 of 2018
and batch which came to be disposed by order dated 12.12.2018 wherein
the legality of the payments was accepted. The Court held that the
Tribunal had misdirected itself and exceeded the scope of remand as
ordered by the Division Bench in the earlier round of proceedings in
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T.C.(A)Nos.361 of 2012 etc batch.
37. Hence, while upholding the legality of the payments made, the
matters stood remanded to the Tribunal to take a decision on whether the
Assessing Officer was right in disallowing the re-insurance premium
under Section 40(a)(i) of the Act. The observations of this Court read as
follows:
26. The Tribunal while upholding the order of the Assessing
Officer did not assign any independent reasons. The
discussion in the impugned order relates to the validity of
re-insurance business outside India done by an Indian
insurer. The Tribunal did not consider the correctness of
the order passed by the Assessing Officer or that of the
CIT(A). Therefore, the Tribunal could not have held that the
Assessing Officer rightly disallowed the re-insurance
premium under Section 40(a)(i). This finding is not
supported with any reasons. Therefore, the Tribunal
misdirected itself, exceeded the scope of remand as ordered
by the Division Bench and ventured into a jurisdiction,
which is wholly prohibited in the light of the plain language
of Section 254(1) of the Act.
27.Thus, for the above reasons, we are of the clear
view that the order passed by the Tribunal calls for
interference. Accordingly, the appeals, filed by the assessee
are allowed and the substantial questions of law framed are
answered in favour of the assessee.
28.In the light of the above, the matter stands
remanded to the Tribunal to take a decision on the
following points:-
(i) Whether the Assessing Officer was right in
disallowing the re-insurance premium under Section
40(a)(i) of the Act;
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(ii) Whether the CIT(A) was right in rejecting
partially the appeal filed by the assessee; and
(iii) Whether the CIT(A) was justified in restricting
the claim of the assessee to 15% instead of confirming the
order passed by the Assessing Officer.
29.We make it clear that the Tribunal shall
decide the above questions alone and nothing more and the
decision shall be taken based on the available material and
the assessee and the Revenue are not entitled to place any
fresh material before the Tribunal so as to enable the
Tribunal to take a decision as expeditiously as possible. No
costs. Consequently, the connected miscellaneous petitions
are closed.
38. The above order dated 12.12.2018 has been confirmed by the
Supreme Court in SLP (C) Nos.17028 of 2019 dated 15.04.2021, filed at
the instance of the Revenue. Pursuant to order dated 12.12.2018, the
Tribunal addressed itself to the issue yet again passing order dated
26.08.2022, impugned before us.
39. The discussion commences from paragraph 13 onwards. We
find that the Tribunal has considered the issue in detail taking note of
various judgments including the judgment of the Supreme Court in
Vodafone International Holdings B.V. V. Union of India8 that overruled
the decision of the Bombay High Court in Vodafone International
8 341 ITR 1
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Holdings B.V. V. Union of India9.
40. The conclusion of the Tribunal is as follows:
‘20. Insofar as case laws relied upon by the learned
CIT (A), of the Hon’ble Bombay High Court in case of
Vodafone International Holdings (329 ITR 126), in
upholding action of the AO of subjecting reinsurance
premium to tax in India, we find that the Hon’ble
Supreme Court has subsequently overruled this
decision and same has been reported in 341 ITR 1 (SC)
and thus, entire basis for the decision of the CIT (A) for
the assessment year 2007-08 has no legs to stand.
Further, the learned CIT (A) for the assessment year
2007-08 did not follow order of his predecessor for the
assessment year 2005-06 on the ground that judgment
of the Hon’ble Bombay High Court in Vodafone
International Holdings (supra) and of the Hon’ble
Supreme Court in the case of Kanchanganga were not
considered. We find that the Hon’ble Supreme Court
has reversed decision of the Hon’ble Bombay High
Court in the case of Vodafone International Holdings
and thus, basis of the CIT (A) to rest his decision on
basis of said judgment is no longer justifiable. As
regards decision of the Hon’ble Supreme Court in the
case of Kanjanganga, we find that facts of the said case
is completely distinguishable and only issue which was
decided therein was whether there was receipt of
income in India which gave rise to a charge. In this
case, it was clearly held that sum paid by the assessee
to NRR is not taxable in India under the Act as well as
DTAA between India and respective countries and thus,
case laws relied upon by the Assessing Officer on the
issue is incorrect.
21. In this view of the matter and considering facts and
9 329 ITR 126
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circumstances of the case and also by following various
case laws discussed hereinabove, we are of the
considered view that reinsurance premium ceded to
non-resident reinsurer is not taxable in India under the
Income Tax Act, 1961 or under DTAA between India
and respective countries where NRRs are tax residents
and thus, on impugned payments the assessee is not
liable to deduct TDS u/s 195 of the Income Tax Act,
1961. Consequently, payments made to NRR cannot be
disallowed u/s40(a)(i) of the Act, 1961. Hence, we
direct the Assessing Officer to delete additions made
towards disallowance of reinsurance premium ceded to
NRRs.’
41. The Tribunal has delved in detail into the factual aspects of the
matter both in the context of domestic law and the Double Taxation
Avoidance Agreements (DTAA), addressing specifically the question as
to whether a ‘broker’ would constitute a Permanent Establishment in
terms of Article 5 of the DTAAs between India and Switzerland,
Malaysia, Thailand, Qatar, Korea, Japan, Germany, United States of
America, Singapore, United Kingdom, Spain, France, Australia and
Kuwait.
42. The submission of the assessee to the effect that re-insurers
were situated outside India and their source of income was outside India
was found to be factually correct. The specific line of argument was that
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the brokers in India were acting as independent entities merely playing
the role of facilitators/communication channels. They did not engage in
negotiation of the terms and neither did they finalize the percentages of
commission in regard to the reinsurance contracts.
43. Though the allegation of the Department was that the role of
the brokers was far more than what was claimed by the assessee, the
Tribunal notes, as a matter of fact towards the conclusion at paragraph
14, that nothing was brought on record by way of evidence by the
Department to justify its stand in this regard.
44. The Tribunal also makes reference to the IRDAI (Insurance
Brokers) Regulations, 2002 which casts a mandate on reinsurance
agents/brokers to act only as facilitators sans the authority to conclude
contracts on behalf of the non-residents. The Tribunal thus concludes
that the amounts collected by the brokers would only be in their capacity
as trustees of the money that was ultimately held in a separate bank
account.
45. In light of this factual decision, the Tribunal concludes that the
brokers did not either constitute a business connection in terms of
Explanation (2) to Section 9(1)(i) of the Act or a Permanent
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Establishment in terms of Article 5 of the relevant DTAAs.
46. No material is produced by the Department before us to
dislodge the factual findings rendered by the Tribunal. The discussion in
the order of the Tribunal sets out the relevant facts making it clear that
the brokers were acting in an independent capacity and their role under
the authority of the IRDAI Regulations, is as a facilitator and nothing
more.
47. Moreover, it is only after in-depth examination of the matter
for AY 2020-21, that the Assessing Authority has concluded the issue in
favour of the assessee. Clearly, the intention of the Department is to
accept the findings in the order of the Tribunal dated 26.08.2022 for all
subsequent years. We hence, we find no justification in the present
lukewarm attempt to re-open and re-argue this issue.
48. In this context, we draw support from the judgment of the
Supreme Court in Berger Paints India Ltd. V. CIT10, where the Supreme
Court has held that where the Department has accepted the interpretation
of a statutory provision in a given factual matrix, that interpretation
should govern the assessments of that issue in regard to other assessees
10 266 ITR 99
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as well, who stand on an identical/comparable footing.
49. In the present case, the assessee stands on a better plane,
seeing as in its own case, the question of liability under Section 40(a)(i)
has been accepted by the Department for A.Y.2020-2021. We may, in
this regard, make useful reference to the ratio of the judgment in
Commissioner of Income-tax V. Excel Industries Ltd.11, where the
Supreme Court has held that once a view has been taken in favour of the
assessee on a particular issue, the Court will not be persuaded to take a
different view for a different year without any convincing reason.
50. In these circumstances, it would be wholly inappropriate for
the Department to canvass a view contrary to the view adopted by it for
assessment years commencing 2020-21 onwards, till date.
51. Learned counsel for the Department has, for her part, cited the
following decisions. The question in C.K.Gangadharan V. CIT12 and CIT
V. J.K.Charitable Trust13 was that the High Court would not decide a
substantial question merely on the ground that no appeal had been
preferred by the revenue in respect of that very issue for other years.
52. That is not the issue that arises before us. We find from the
11 358 ITR 295
12 304 ITR 61
13 308 ITR 161
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records that the Department had contested the issue of liability under
Section 40(a)(i) upto A.Y.2014-15 upto the level of the High Court,
under Section 260A of the Act, for A.Ys.2015-16 and 2018-19 before the
Income Tax Appellate Tribunal and has not contested the issue from
A.Y.2020-21 onwards, accepting the stand of the assessee in full, at the
stage of assessment. Hence, the ratio of the judgements in
C.K.Gangadharan14 and J.K.Charitable Trust15 are distinguishable.
53. As far as the decision in CIT V. Oswal Agro Mills Ltd16 is
concerned, the issue that arose for consideration there, is related to
eligibility of deduction of expenses incurred as ‘management expenses’.
The Tribunal and the High Court had acceded to the stand of the assessee
on the basis of Rule of consistency. Those orders were reversed, the
Supreme Court expressing the view that that ought not to have been the
sole basis for answering the substantial questions of law.
54. We have, in the present order, also looked into the substantive
issue of liability under Section 40(a)(i) and invocation of the Rule of
consistency is additional, intended only to buttress on conclusion.
14 Foot Note Supra (7)
15 Foot Note Supra (8)
16 313 ITR 28
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Hence, and in light of the discussion as aforesaid, we see no necessity to
admit the substantial questions of law now raised under the
Miscellaneous Petitions.
55. In light of the above discussion, all appeals and the
Miscellaneous Petitions are dismissed. The substantial questions
admitted in T.C.(A).Nos.193, 174, 175, 176, 177, 178, 179, 180, 181,
182, 183, 184, 192, 195, 196 & 197 of 2023 are answered in favour of
the Assessee and the Miscellaneous Petitions are dismissed as no
Substantial Question arises therein for consideration of the Court. No
costs.
[A.S.M., J] [G.A.M., J]
09.01.2025
Index:Yes
Speaking Order
Neutral Citation:Yes
sl
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DR. ANITA SUMANTH.,J.
and
G. ARUL MURUGAN.,J.
sl
T.C.A.Nos. 193, 174, 175, 176,
177, 178, 179, 180, 181, 182,
183, 184, 192, 195, 196 & 197 of 2023
09.01.2025
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