2018 (7) TMI 555 - SC - Income Tax

Revision u/s 263 - Deductibility of expenses u/s 37(1) of the Act Fluctuation in rate of exchange - Held that - As submitted by the learned ASG that the assessee had taken up the ground of jurisdiction of Commissioner of Income Tax under Section 263 of the Act. However, this ground was ultimately not pressed and the ITAT did not allow the appeal on this ground but on merits. Therefore, there was no finding of ITAT that the exercise of power under Section 263 of the Act by Commissioner of Income Tax was erroneous and, thus, there was no question for challenging that aspect of the matter. In the aforesaid circumstances, we permit the Revenue to file an application for review before the High Court and when such a review application is filed within one month from today the same shall be decided on merits. In case the High Court decides the review application against the appellant, the appellant while challenging that order would be at liberty to challenge the impugned order as well.

Summary

Issues:
1. Jurisdiction of the Commissioner of Income Tax under Section 263 of the Income Tax Act, 1961.
2. Addition of notional losses on account of foreign exchange fluctuations in the assessment order.
3. Appeal filed by the Income Tax Department challenging the ITAT's order.
4. Dismissal of the Income Tax Department's appeal by the High Court.

Jurisdiction of the Commissioner of Income Tax under Section 263:
The case involved an assessment order where notional losses on foreign exchange fluctuations were added back by the Assessing Officer, leading to the Commissioner of Income Tax invoking jurisdiction under Section 263 of the Income Tax Act, alleging income concealment. The assessee appealed to the ITAT, challenging both the jurisdiction of the Commissioner and the addition on merits. The ITAT allowed the appeal solely on merits, not addressing the jurisdictional issue. The High Court dismissed the Income Tax Department's appeal under Section 260A, noting that the Revenue did not challenge the ITAT's finding that the Commissioner lacked jurisdiction under Section 263. The Supreme Court permitted the Revenue to file a review application before the High Court to address this jurisdictional aspect.

Addition of notional losses on foreign exchange fluctuations:
The Assessing Officer's addition of notional losses was a key point in the assessment order. The Commissioner's exercise of jurisdiction under Section 263 was based on this addition, alleging income concealment by the assessee. The ITAT, while allowing the appeal, did not specifically address this addition but focused on the merits of the case. The High Court's dismissal of the Revenue's appeal was primarily due to the failure to challenge the ITAT's finding on the lack of jurisdiction, rendering the appeal infructuous. The Supreme Court's decision to allow a review application aimed to address this aspect and potentially revisit the entire case on merits.

Appeal filed by the Income Tax Department:
Following the ITAT's decision in favor of the assessee, the Income Tax Department filed an appeal before the High Court under Section 260A of the Income Tax Act. The High Court, however, dismissed this appeal on the grounds that the Revenue did not challenge the ITAT's finding regarding the lack of jurisdiction of the Commissioner under Section 263. This dismissal led to the Supreme Court allowing the Revenue to file a review application to address the jurisdictional issue.

Dismissal of the Income Tax Department's appeal by the High Court:
The High Court's dismissal of the Income Tax Department's appeal was based on the failure to challenge the ITAT's finding on the lack of jurisdiction of the Commissioner under Section 263. This dismissal rendered the appeal infructuous, prompting the Supreme Court to allow the Revenue to file a review application to potentially revisit the case on merits. The Supreme Court's decision aimed to ensure a comprehensive consideration of all aspects, including jurisdictional issues, in the legal proceedings.