2025 (3) TMI 1425 - AT - Income Tax

Rectification u/s 154 - Deduction in respect of Provision created on account of litigation u/s 43B - HELD THAT - As substantive ground seeking to allow its deduction representing provision created on account of litigation which has been disallowed by the learned lower authorities by quoting section 43B of the Act. The assessee s case before us is that it has already filed section 154 rectification before the Assessing Officer on 6th of August 2024 which is yet to be decided. Faced with this situation we deem it appropriate to accept the assessee s instant second substantive ground for statistical purposes with a direction to AO to finally decide the foregoing section 154 rectification as per law within three effective opportunities. Ordered accordingly. Beneficial withholding rate of 5% pertaining to the Dividend Distribution Tax DDT involving various overseas payees going by the Most Favoured Nation MFN clause(s) in the respective DTAA - As submits very fairly that this tribunal s special bench in DCIT Vs. Total Oil India Pvt. Ltd. 2023 (4) TMI 988 - ITAT MUMBAI (SB) has already decided the issue against the assessee and in the department s favour that such an application of MFN clause is not automatic. We accordingly reject the assessee s instant third and fifth substantive grounds in very terms. Deduction of Education Cess EC and secondly Higher Education Cess HEC - Ld concel submits very fairly that the same is no more allowable in light of Section 40(2) Explanation- III inserted by Finance Act 2022 with retrospective effect from 01.04.2005. Rejected accordingly. Assessee s appeal is partly allowed for statistical purposes.

Summary

ISSUES PRESENTED and CONSIDERED

The appeal raised several substantive grounds, which can be grouped into the following core legal questions:

• Whether the provision created on account of litigation is allowable as a deduction under the Income-tax Act, 1961.
• Whether the assessee is entitled to a lower tax withholding rate of 5% on dividend payments to a Swedish company under the Most Favoured Nation (MFN) clause of the India-Sweden DTAA.
• Whether the Education Cess and Secondary Higher Education Cess paid on income tax are deductible.
• Whether the assessee is entitled to complete credit for Tax Deducted at Source (TDS) and Foreign Tax Credit.

ISSUE-WISE DETAILED ANALYSIS

1. Deduction for Provision on Account of Litigation

• Relevant legal framework and precedents: The deduction was disallowed by the lower authorities citing Section 43B of the Income-tax Act, which mandates certain deductions to be allowed only on actual payment.
• Court's interpretation and reasoning: The Tribunal noted that the assessee had filed a rectification application under Section 154, which was pending. It directed the Assessing Officer to decide the rectification application as per the law.
• Conclusion: The Tribunal accepted the ground for statistical purposes, directing further proceedings under Section 154.

2. Application of MFN Clause in DTAA for Lower Withholding Rate

• Relevant legal framework and precedents: The assessee sought a reduced withholding rate based on the MFN clause in the India-Sweden DTAA. The Tribunal referred to the special bench decision in DCIT Vs. Total Oil India Pvt. Ltd., which held that the application of the MFN clause is not automatic.
• Court's interpretation and reasoning: The Tribunal rejected the assessee's claim, aligning with the precedent that the MFN clause does not automatically apply to reduce withholding rates.
• Conclusion: The Tribunal rejected the grounds seeking a beneficial withholding rate of 5%.

3. Deduction of Education Cess and Secondary Higher Education Cess

• Relevant legal framework and precedents: The Finance Act, 2022, inserted an explanation with retrospective effect from 01.04.2005, explicitly disallowing such deductions.
• Court's interpretation and reasoning: Given the retrospective amendment, the Tribunal held that the cess was no longer deductible.
• Conclusion: The Tribunal rejected the ground for deduction of the cess.

4. Credit for TDS and Foreign Tax Credit

• Relevant legal framework and precedents: The assessee claimed incomplete credit for TDS and Foreign Tax Credit under Sections 90/91.
• Court's interpretation and reasoning: The Tribunal noted that the Assessing Officer had already allowed the rectification under Section 154, granting the necessary credits.
• Conclusion: The Tribunal dismissed these grounds as the relief had already been granted.

SIGNIFICANT HOLDINGS

• Provision on Account of Litigation: The Tribunal directed the Assessing Officer to address the pending Section 154 rectification application, thereby keeping the issue open for further determination.
• MFN Clause Application: The Tribunal upheld the precedent that the MFN clause does not automatically apply to reduce the withholding tax rate, emphasizing the need for explicit provisions in the DTAA.
• Education Cess Deduction: The Tribunal confirmed the non-deductibility of the cess due to the retrospective amendment by the Finance Act, 2022.
• Credit for TDS and Foreign Tax Credit: The Tribunal acknowledged that the necessary credits had been granted through a rectification process, rendering these grounds moot.

The appeal was partly allowed for statistical purposes, with specific directions for further proceedings on the provision for litigation. Other grounds were either rejected or deemed resolved due to prior rectification by the Assessing Officer.