Appeal Details
Counselvise Citation
[2022] 104 COUNSELVISE.COM (IT) 2822 (ITAT-BANGALORE)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
24 day(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
14-09-2022
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
C
Next Hearing Date
08-09-2022
Assessment Year
2014-2015
Appeal Filed On
21-08-2022
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL ‘C’ BENCH : BANGALORE BEFORE SMT. BEENA PILLAI, JUDICIAL MEMBER AND SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER Appeal No. Appellant Respondent Assessment Year M.P. No. 85/Bang/2022 (in IT(TP)A No. 99/Bang/2014) M/s. Wipro Ltd., 76P and 80P, Doddakannelli, Sarjapur Road, Bangalore – 560 036. PAN: AAACW0387R The Addl. Commissioner of Income-tax, Range – 12, Bangalore. 2009-10 M.P. No. 86/Bang/2022 (in IT(TP)A No. 398/Bang/2015) The Deputy Commissioner of Income Tax, Circle – 7(1)(2), Bangalore. 2010-11 M.P. No. 87/Bang/2022 (in IT(TP)A No. 222/Bang/2016) The Assistant Commissioner of Income Tax, Circle – 7(1)(2), Bangalore. 2011-12 M.P. No. 88/Bang/2022 (in IT(TP)A No. 492/Bang/2017 2012-13 M.P. No. 89/Bang/2022 (in IT(TP)A No. 2851/Bang/2017) 2013-14 M.P. No. 90/Bang/2022 (in IT(TP)A No. 3115/Bang/2018 The Joint Commissioner of Income-tax, Special Range - 12, Bangalore. 2014-15 Assessee by : Shri Sandeep Huilgol, Advocate Revenue by : Dr. Shankar Prasad K, Addl. CIT DR Date of Hearing : 09-09-2022 Date of Pronouncement : 15-09-2022 Page 2 of 6 M.P. Nos. 85 to 90/Bang/2022 ORDER PER BEENA PILLAI, JUDICIAL MEMBER Present miscellaneous petitions are filed by assessee against consolidated order passed by this Tribunal dated 05/10/2020. 2. The Ld.AR submitted that miscellaneous petitions are in respect of an issue connected with the claim of foreign tax credit that is adjudicated in the impugned order in para 9.1 to 9.12 at pages 33 to 48. 3. He submitted that the issue in respect of foreign tax credit / deduction was adjudicated by this Tribunal being a common issue for all the assessment years under consideration and this Tribunal had directed the Ld.AO to allow the foreign tax credit claimed by the assessee in terms of decision rendered by Hon'ble Karnataka High Court in assessee’s own case reported in 382 ITR 179. Hon'ble High Court of Karnataka (supra) decided the issue in favour of the assessee in assessment year 2001-02 to 2004- 05. 4. The Ld.AR submitted that an alternate plea was raised for A.Ys. 2011-12 to 2014-15, wherein disallowance made u/s. 37 was prayed to be deleted. He submitted that this alternate plea was been adjudicated by this Tribunal, while passing the consolidated order dated 05/10/2020. He submitted that this is a mistake apparent on record that deserves to be rectified. 5. On the contrary, the Ld.DR submitted that the alternate plea raised by the Ld.AR has not been raised in all the assessment years under consideration and that at the time of argument, emphasise was only in respect of the main issue regarding disallowance of FTC claimed by the assesee. Page 3 of 6 M.P. Nos. 85 to 90/Bang/2022 6. Referring to A.Y. 2009-10, the Ld.DR submitted that Ground no. 26 only deals with non-granting of full credit for foreign taxes paid as per DTAA and there is no whisper about the alternate plea. Further, the Ld.DR submitted that the Tribunal has decided the issue on the preliminary contention that was argued by the Ld.AR at the time of hearing and therefore no prejudices is caused to the assessee. We have perused the submissions advanced by both sides in the light of records placed before us. 7. We note that the alternative plea submitted by assessee in the present miscellaneous petition, has not been raised in all the assessment years as we verify the records. For A.Y. 2009-10 this issue has not been alleged at all and in the other assessment years, from 2011-12 onwards to 2014-15, this issue has been raised as an alternate submission in the event assessee is not granted foreign tax credit. The submissions filed by the assessee before this Tribunal at the time of original hearing also do not mention anything regarding the alternate ground raised in the assessment years 2011-12 to 2014-15. 8. Peculiarly for A.Y. 2010-11, we note that assessee has raised this alternate ground as under: “20. That the assessing officer/DRP erred on facts and in law in disallowing a sum of Rs. 4,06,29,730/- considering that the said sum stands covered by the provisions of section 40(a)(ii) of the Act though the said sum pertains to tax withheld by customers from payments to the assessee in respect of which no relief u/s 90 / 91 has been granted by the assessing officer.” and in para 20.1 assessee is raising the issue of FTC being denied as without prejudice ground. 9. On perusal of the impugned order, we note that the Tribunal decided the entire appeal categorising the grounds issue-wise. Page 4 of 6 M.P. Nos. 85 to 90/Bang/2022 At page 33, the Tribunal is recording Issue no. 6 relating to foreign tax credit / deduction and in para 9.1, the Tribunal has observed as under: “9.1 This issue relates to the rejection of claim for set off of foreign tax credit / deduction relating to income generated abroad. The assessee has raised this issue in all the years under consideration, i.e. from assessment years 2009-10 to 2014-15.” 10. Thereafter the Tribunal referring to various provisions of section 90/91 and the observations of the Hon'ble Karnataka High Court in assessee’s own case, decided the issue by observing as under: “9.11 We are also of the view that the expressions used in sec. 90(1)(a)(i) and (ii) and in sec.91 would also merit attention in this regard. Section 90(1)(a)(i) uses the expression "income on which have been paid both income tax....". Section 91(1) uses the expression "If any person who is resident in India in any previous year proves that in respect of his income which accrued or arose during the previous year outside India (and which is not deemed to accrue or arise in India), he has paid in any Country with which there is no agreement under section 90 for the relief or avoidance of double taxation, income tax, by deduction or otherwise..... It can be noticed that, "payment of tax" is mentioned both in sec.90(1)(a)(i) and sec. 91. However, section 90(1)(a)(ii) uses the expression "income tax chargeable under this IT(TP)A Nos.99/Bang/2014, 398/Bang/2015, 222/Bang/2016, 492/Bang/2017, 2851/Bang/2-17, 3115/Bang/2018, 151/Bang/2014, 467/Bang/2015 & 609/Bang/2016 M/s. Wipro Limited, Bangalore Act and under the Corresponding law in force in that Country....." Thus, it can be noticed that the provisions of sec.90(1)(a)(i) and sec.91(1) refers to actual payment made in the foreign Country and the provisions of sec.90(1)(a)(ii) refers to "income tax chargeable under this Act and under the corresponding law in force in that Country", i.e., there is no reference to actual payment of tax. 9.12 Accordingly, following the binding decision of High Court, we set aside the order passed by A.O. on this issue and direct him to allow foreign taxes credit claimed by the assessee in terms of decision rendered by Hon'ble High Court of Karnataka referred above.” Page 5 of 6 M.P. Nos. 85 to 90/Bang/2022 10.1 An error which is not self-evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review. 10.2. The Hon'ble Supreme Court in the case of CIT v. Karam Chand Thapar & Bros. (P.) Ltd. (1989) 43 Taxman 45 held as under: "It is equally well settled that the decision of the Tribunal has not to be scrutinized sentence by sentence merely to find out whether all facts have been set out in detail by the Tribunal or whether some incidental fact which appears on the record has not been noticed by the Tribunal in its judgment. If the court, on a fair reading of the judgment of the Tribunal, finds that it has taken into account all relevant material and has not taken into account any irrelevant material in basing its conclusions, the decision of the Tribunal is not liable to be interfered with, unless, of course, the conclusions arrived at by the Tribunal are perverse. It is not necessary for the Tribunal to state in its judgment specifically or in express words that it has taken into account the cumulative effect of the circumstances or has considered the totality of the facts, as if that were a magic formula; if the judgment of the tribunal shows that it has, in fact, done so, there is no reason to interfere with the decision of the Tribunal." 10.3. Hon’ble Bombay High Court in the case of CIT vs Ramesh Electric and Trading Co., reported in 203 ITR 497 has held as under: “ .............It is an accepted position that the Appellate Tribunal does not have any power to review its own orders under the provisions of the Act. The only power which the Tribunal possesses is to rectify any mistake in its own order which is apparent from the record........ The power of rectification under section 254(2) can be exercised only when the mistake which is sought to be rectified s an obvious and patent mistake which is apparent from the record and not a mistake which required to be established by arguments and a long drawn process of reasoning on points on which there may conceivably be two opinion. Failure of the Tribunal to consider an argument advanced by either party for arriving at a conclusion is not an error apparent on the record, although it may be an error of judgments........................" Page 6 of 6 M.P. Nos. 85 to 90/Bang/2022 11. In the above circumstances as the disallowance if any u/s. 37 if had to be considered should have been the main ground instead of an alternate ground raised by the assessee for the years under consideration. In our view, as the Tribunal decided the preliminary issue in favour of the assessee, and the alternate plea raised not being adjudicated, cannot be considered to be a mistake apparent on record. In the result, all the miscellaneous petitions filed by the assessee stands dismissed. Order pronounced in the open court on 15 th September, 2022. Sd/- Sd/- (LAXMI PRASAD SAHU) (BEENA PILLAI) Accountant Member Judicial Member Bangalore, Dated, the 15 th September, 2022. /MS / Copy to: 1. Appellant 4. CIT(A) 2. Respondent 5. DR, ITAT, Bangalore 3. CIT 6. Guard file By order Assistant Registrar, ITAT, Bangalore
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