- (1.)This batch of tax case (appeals), filed at the instance of the assessees as against the common order of the Income-tax Appellate Tribunal, were admitted by this court on the following substantial questions of law:
T.C. (A.) Nos. 361 to 370 and 372 to 389 of 2012

1. Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal has exercised its power of remand judiciously and in accordance with law?

2. Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was right in law in remanding the matters back to the file of the Assessing Officer even when no new materials had been presented before it and all materials were placed' before the lower authorities?

3. Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was right in law in remanding the matters back to the Assessing Officer without giving specific directions?

T. C. (A.) Nos. 223 to 250 of 2013

1. Whether the Income-tax Appellate Tribunal erred in remanding the matter back to the Assessing Officer when there was no tactual dispute between the parties and the Commissioner of Income-tax (Appeals) had given a conclusive order on the entire factual matrix of the case?

2. Whether the Income-tax Appellate Tribunal erred in not recording a finding that the appellant had produced fresh material, but still remanding the appellant's cases along with the other assessees who had produced fresh material?

3. Whether the Income-tax Appellate Tribunal erred in not deciding issues other than reinsurance premium, on which, according to the impugned order itself, there are no fresh materials produced?

4. Whether the Income-tax Appellate Tribunal erred in remanding the matter back to the Assessing Officer without recording a finding on what materials were produced freshly before it?

Since the issues raised in all the assessees' appeals are identical, particularly on the question of remand, it is suffice to refer the said issue by a common judgment. The common facts in all these cases is that the assessees are all insurance companies/Among the various issues raised in the course of reassessment proceedings including the validity of such reopening the Assessing Officer disallowed the reinsurance premium paid to non-resident reinsurers on the ground that the taxes had not been withheld at source. Aggrieved by the same, the assessees canvassed this issue apart from various other issues before the Commissioner of Income-tax (Appeals) by preferring appeals. On the question of TDS on the re-insurance premium paid to non-resident reinsurers, the Commissioner rejected the contention of the assessees and confirmed the re-assessment proceedings. However, the Commissioner granted certain relief, which resulted in filing of appeals by the Revenue as well as by the assessees before the Income-tax Appellate Tribunal.

(2.)There were in all 56 appeals, partly by the assessees and partly by the Revenue before the Tribunal. The Tribunal pointed out that the issue raised in the appeals related to disallowance of reinsurance premium paid to the non-resident reinsurers by the assessees. There was also a common question as regards treating the unexpired premium reserve as income. In the appeals pertaining to M/s. Cholamandalam MS General Insurance Co. Ltd., these two issues alone arose. However, in the case of M/s. Royal Sundaram Alliance Insurance Co. Ltd., apart from the above issues, there were issues like disallowance of depreciation, unexplained expenditure, unexplained investment, profit on sale of investment, etc. In the case of the United India Insurance Co., there were other grounds also raised on the disallowance made under section 40(a)(i) of the Income-tax Act.
(3.)After referring to the decision of the Supreme Court in the case of GE India Technology Centre P. Ltd. v. CIT, 2010 327 ITR 456 in Civil Appeal Nos. 7541-7542 of 2010, dated September 9, 2010,-since wherein the apex court had considered the liability as regards the remittance to the non-resident by an Indian company, the Tribunal held that the issue as regards the payment of reinsurance premium to non-resident reinsurance companies and TDS to be made and particularly, the issue on the place of permanent establishment are all questions that have to be considered by the Assessing Officer based on the DTAA. The Assessing Officer disallowed the claim under section 40(a)(i) on the ground that there were no TDS made. The Tribunal pointed out that detailed paper-books were filed by the assessees indicating the details of reinsurance premium given to the non-resident insurance companies, profit margin of the assessee-companies, explanation on the concept of unexpired risk reserve, etc., apart from the Double Taxation Avoidance Agreements entered into between India and Switzerland and India and Japan. In addition, several other documents were also placed by the assessee. In paragraph 17 of the order, the Tribunal viewed that these documents were not made available to the lower authorities. The Tribunal also viewed that the recent decisions of the court on this issue are also relevant for consideration. In this background, the Tribunal thought it fit to remand the assessment proceedings back to the Assessing Officer for de novo consideration.