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2023 (1) TMI 514 - AT - Income TaxForeign tax credit under the provisions of section 91 - assessee submitted that provisions of section 91 of the Act have referred the income and not overseas net profit, net income or proportionate income, therefore the rate of tax in the foreign country should be worked out after considering the gross receipts and the amount of TDS deducted which comes out at 7% which is lower than the rate of tax in India - HELD THAT - Revenue has not placed any material on record to point out any distinguishing feature in the facts of the case for the year under consideration and that of earlier years A.Y. 2012-13 2020 (3) TMI 1170 - ITAT AHMEDABAD nor has placed any contrary binding decision in its support. Thus, respectfully following the order this tribunal in own case of assessee the we hold that the foreign tax credit to the extent not allowed under section 91 of the Act will eligible for deduction under section 37 of the Act as business expense. Thus, the ground of appeal raised by the assessee is hereby partly allowed.
Issues:
1. Disallowance of claim for foreign tax credit under section 91 of the Income Tax Act. 2. Consideration of gross receipts vs. net profit for determining foreign tax credit eligibility. 3. Disallowance of foreign tax credit by the Assessing Officer. 4. Upholding of AO's decision by the CIT (A). 5. Interpretation of the rate of tax in the foreign country under section 91 of the Act. 6. Claim for deduction of taxes paid in the foreign country as expenditure under section 37(1) of the Act. Issue 1: Disallowance of claim for foreign tax credit under section 91 of the Income Tax Act: The Assessee appealed against the order of the CIT (A) disallowing the claim for foreign tax credit of Rs. 4,22,679 under section 91 of the Act. The Assessee argued that it had paid taxes in a foreign country at a lower rate, thus eligible for relief under section 91. However, the AO disagreed, requiring a detailed computation of allowable tax credit, leading to disallowance. Issue 2: Consideration of gross receipts vs. net profit for determining foreign tax credit eligibility: The Assessee contended that the rate of tax in the foreign country should be based on gross receipts and TDS deducted, resulting in a lower rate than in India. The AO, however, insisted on considering the net income for determining the rate of tax in the foreign country, leading to the disallowance of the claim. Issue 3: Disallowance of foreign tax credit by the Assessing Officer: The AO disallowed the foreign tax credit claim, emphasizing the need for a detailed computation and adjustment of expenses against gross income from foreign sources. The lack of sufficient details from the Assessee led to the disallowance. Issue 4: Upholding of AO's decision by the CIT (A): On appeal, the CIT (A) upheld the AO's decision to disallow the foreign tax credit claim, resulting in the Assessee challenging this decision before the ITAT. Issue 5: Interpretation of the rate of tax in the foreign country under section 91 of the Act: The ITAT analyzed the provisions of section 91 and explained that the rate of tax in the foreign country should be determined by dividing the tax paid by the whole amount of income, signifying net profit after expenses. The ITAT found no infirmity in the AO's decision due to the lack of detailed expenses provided by the Assessee. Issue 6: Claim for deduction of taxes paid in the foreign country as expenditure under section 37(1) of the Act: The ITAT partially allowed the Assessee's appeal, holding that the taxes paid in the foreign country, not eligible for relief under section 91, could be claimed as a deduction under section 37(1) as business expenditure. Citing a relevant judgment, the ITAT allowed the deduction, as the tax was paid in the course of business. In conclusion, the ITAT partially allowed the Assessee's appeal, granting relief under section 37 of the Act for the foreign tax credit not allowed under section 91. The decision was based on the interpretation of tax rates, the necessity of detailed computations, and the eligibility of foreign taxes as business expenditure.
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