NIHILENT LIMITED,PUNE V. PCIT-2, PUNE

MA 69/PUN/2024

AI Insights

Nihilent Limited filed miscellaneous applications against the order of the Income Tax Appellate Tribunal, which had earlier upheld the PCIT's revision order under section 263 for the assessment years 2017-2018 and 2018-2019. The PCIT had set aside the assessment order concerning the foreign tax credit (FTC) claimed by the assessee, which amounted to Rs.3,92,97,431 for 2017-18 and Rs.38,14,985 for 2018-19, due to incomplete documentation. The Tribunal initially upheld the PCIT's decision without specifying the extent of the revision. Upon review, the Tribunal acknowledged the mistake and clarified that the revision should only pertain to the unsubstantiated amount of Rs.95,32,362 for 2017-18 and the corresponding amount for 2018-19, thus rectifying the earlier order.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 37767 (ITAT-PUNE)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-01-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2018-2019
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAMNATH P MURKUNDE
• Assessee Lawyers: NIKHIL S PATHAK
• Keywords: Set aside
• Section: 263

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL PUNE “A” BENCH : PUNE BEFORE SHRI RAMA KANTA PANDA, VICE PRESIDENT AND MS. ASTHA CHANDRA, JUDICIAL MEMBER M.A.Nos.68 & 69/PUN./2024 Arising out of I.T.A.Nos.928 & 929/PUN./2024 Assessment Years 2017-2018 & 2018-2019 Nihilent Limited, 403-404, 4th Floor, ‘D’-Block, Weikfield IT City Info Park, Nagar Road, Viman Nagar, PUNE PIN -411 014 PAN AABCN0867G Maharashtra. vs. The PCIT, PUNE. (Applicant) (Respondent) For Assessee : Shri Nikhil S Pathak For Revenue : Shri Ramnath P Murkunde Date of Hearing : 03.01.2025 Date of Pronouncement : 09.01.2025 ORDER PER RAMA KANTA PANDA, V.P. : The assessee, through the above miscellaneous applications, has requested the Tribunal to rectify certain mistakes that have crept in the order of the Tribunal. Since contents of both these miscellaneous applications are similar, therefore, for the sake of convenience, both these miscellaneous applications were heard together and are being disposed of by this common order. 2. Learned Counsel for the Assessee, at the outset, drew the attention of the Bench to the contents of the 2 M.A.Nos.68 & 69/PUN./2024 miscellaneous application for assessment year 2017-2018 which reads as under : 1. “In this case, the assessee company had challenged the order passed under section 263 by the learned Principal Commissioner of Income Tax, Pune-2 ('PCIT') for A.Y. 2017- 18. The assessee submits that for this year, the learned Assessing Officer ('AO') had passed the assessment order wherein the entire foreign tax credit ('FTC') claimed by the assessee of Rs.3,92,97,431/- was allowed. Thereafter, the learned PCIT has passed the revision order wherein he has set aside the issue of claim of FTC to the file of the AO. The assessee challenged the said revision order passed under section 263 before Hon'ble Income Tax Appellate Tribunal (ITAT\"). Hon'ble ITAT passed the order on 25.10.2024. After going through the order of the Hon'ble ITAT, the assessee submits that there are certain mistakes apparent from record and hence, the said Miscellaneous Application is being filed before Hon'ble ITAT. 2. The assessee submits that in the course of hearing before Hon'ble ITAT, it had argued that the learned PCIT had no jurisdiction to revise an assessment order passed under the faceless regime. Further, it was also argued that since as per the order of learned PCIT, there was no change in the total income of the assessee, the revision order passed was invalid in law. Without prejudice, it was further 3 M.A.Nos.68 & 69/PUN./2024 stated that the details were furnished before the PCIT and since there was no adverse inference on the various details, the revision order was not justified. 3. Further, the assessee had argued that the total FTC claimed for A.Y. 2017 -18 was Rs.3,92,97,432/- and the amount for which the details were not submitted before the learned AO was to the tune of Rs.95,32,362/-. It was clarified in the course of hearing that the PCIT had set aside the assessment order to verify the entire claim of FTC without appreciating that the assessee submitted the details for the major amount before the learned AO and hence, it at all, the issue was to be verified, the same should have been restricted to the amount of Rs.95,32,362/- for A.Y. 2017-18. 4. Now, Hon'ble ITAT has passed the order. The assessee submits that Hon'ble ITAT has firstly not decided the issue regarding jurisdiction of the learned PCIT to pass a revision order when the original assessment order is passed under faceless regime. Secondly, Hon'ble ITAT has not discussed the issue as to whether revision order under section 263 is justified when there is no change in income. The assessee submits that since these issues have not been decided by Hon'ble ITAT, there is a mistake apparent from record and hence, the assessee requests to recall the said order for deciding the above issues. 4 M.A.Nos.68 & 69/PUN./2024 5. Further, as stated above, the assessee during the assessment proceedings had submitted the details of the major amounts of the FTC claimed before the learned AO. For the year under consideration, the amount for which the details were not submitted was Rs.95,32,362/-. The assessee submits that Hon'ble ITAT in the course of hearing had agreed that the issue only to that extent for which the details were not submitted before the learned AO can be set aside. However, in the order passed by Hon'ble ITAT, the said issue has not been discussed and decided. Accordingly, the assessee requests Hon'ble ITAT to recall the said order for deciding the said issue which is specifically raised in Ground No.6. Accordingly, the assessee submits that non-consideration of specific grounds of appeal is a mistake apparent from record and therefore, the assessee requests to recall the apparent order and decide the said ground of appeal.” 2.1. He submitted that the contents of the miscellaneous applications being self-explanatory, necessary order should be passed by rectifying the order of the Tribunal. He further submitted that the contents of the Miscellaneous Application for assessment year 2018-2019 are also similar except the figures, which is to the tune of Rs.38,14,985/-. 5 M.A.Nos.68 & 69/PUN./2024 3. The Learned DR, on the other hand, submitted that there is no apparent error in the order of the Tribunal and, therefore, the miscellaneous applications filed by the assessee should be dismissed. 4. We have heard the rival arguments made by both the sides and perused the material available on record. We find the Assessing Officer while passing the assessment order in assessment year 2017-2018 has allowed the foreign tax credit to the extent of Rs.3,92,97,432/- despite the assessee not giving certificates in Form-67 to the extent of Rs.95,32,362/-, for which the learned PCIT exercised his revisional jurisdiction under sec.263 of the Act. We find when the appeal was heard, it was indicated by the Bench that the order is erroneous and prejudicial to the interest of revenue to the extent of Rs.95,32,362/-, for which, the PCIT was justified invoking jurisdiction u/sec.263 of the Act. However, while passing the order, the Tribunal inadvertently, upheld the order of the PCIT setting aside the entire order for verification of Rs.3,92,97,432/-. We, therefore, are of the opinion that a mistake has crept in the order of the Tribunal which requires modification of the order. We, therefore, modify para 7 to 9 of the order of the Tribunal which is directed to be read as under: “7. So far as assessee's argument that compliance to Rule 128 is only directory in nature (supra), we are of the 6 M.A.Nos.68 & 69/PUN./2024 considered view that the said interpretation is only regarding submission of Form No.67 then that of compliance to Rule 128(8)(ii)(c) in above terms. We accordingly reject the assessee's instant lead appeal ITA No.928/PUN/2024 and uphold the PCIT's impugned section 263 revision directions to the extent of Rs.95,32,362/-. 8. Same order to follow in assessee latter appeal in ITA.No.929/PUN/2024 as the learned PCIT has assumed his revision jurisdiction on identical set of facts only to the extent of Rs.38,14,985/-. 9. These assessee's twin appeals ITA.Nos.928 & 929/PUN/2024 are dismissed in above terms. A copy of this common order be placed in the respective case files.” 5. In the result, both the Miscellaneous Applications filed by the Assessee are allowed. A copy of this common order be placed in the respective case files. Order pronounced in the open Court on 09.01.2025. Sd/- Sd/- [MS. ASTHA CHANDRA] [RAMA KANTA PANDA] JUDICIAL MEMBER VICE PRESIDENT Pune, Dated 09th January, 2025 VBP/- 7 M.A.Nos.68 & 69/PUN./2024 Copy to 1. The appellant 2. The respondent 3. D.R. ITAT, “A” Bench, Pune. 4. Guard File. //By Order// //True Copy // Sr. Private Secretary, ITAT, Pune Benches, Pune. "