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TMI Blog2024 (7) TMI 1339X X X X Extracts X X X X X X X X Extracts X X X X ..... N'BLE MR. JUSTICE RAVINDER DUDEJA For the Petitioner Through: Mr. Percy Pardiwala, Sr. Adv. with Mr. Hiten Thakkar and Mr. Nikhil Ranjan, Advs. For the Respondents Through: Mr. Debesh Panda, SSC along with Mr. Vikramaditya Singh, Ms. Zehra Khan, JSCs, Mr. Vineet Gupta, Mr. Ojaswa Pathak and Mr. Anuantta Shankar, Advs. Mr. Ravi Prakash, CGSC for UOI. JUDGMENT YASHWANT VARMA, J. (ORAL) 1. The writ petitioner impugns the order framed by the Assessing Officer [AO] dated 13 May 2022 to the extent that it denies a deduction of INR 9,62,39,916/-. 2. Undisputedly, the said order has come to be framed in order to give effect to the decision rendered by the Income Tax Appellate Tribunal [Tribunal] for Assessment Year [AY] 1998-1999. 3. As we read the order of the Tribunal and which dealt with Ground No. 6 which pertained to deductions claimed in respect to payment of salary to expatriate employees, it had observed as under:- 19. Ground No.6: 6 (a) That on the facts and in the circumstances of the case, the CIT (Appeals) erred in confirming the action of the Assessing Officer in rejecting the claim of the appellant for being allowed deduction with respect to salaries paid by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on-applicability of provisions u/s 44C. The issue before third member was not at all in regard to allow ability of deduction u/s 44C and only following points of difference were before him for adjudication: (a) Whether or not, on the facts and in the circumstances in the case, the assessee is entitled to deduction of tax component of salary of expatriate employees, relating to asst. yrs. 1990-91 and 1991-92, in the asst. yr. 1995-96, i.e., the year in which the tax has been paid by the assessee. (b) Whether or not, on the facts and in the circumstances of the case, the assessee was entitled to deduction of interest levied u/s 201(1A). (c) Whether or not, on the particular facts and in the particular circumstances of this case, the assessee was entitled to deduction on account of operational loss of Rs. 9,57,58,904/-. 11.1 Thus, Ld. DRP has not correctly appreciated the facts of the case. 12. Respectfully, following the decisions of Hon'ble Bombay High Court in the case of Emirates Commercial Bank Ltd. (supra), this ground is allowed . 20.1. Learned Counsel for the Assessee also submitted that the aforesaid Order of the Tribunal Dated 19.09.2014 as reported in 49 taxmann.com 441 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... follows: - 2. The question raised in this appeal relates to whether the appellant assessee could make a claim for deduction other than by filing a revised return. The assessment year in question was 1995-96. The return was filed on November 30, 1995, by the appellant for the assessment year in question. On January 12, 1998, the appellant sought to claim a deduction by way of a letter before the Assessing Officer. The deduction was disallowed by the Assessing Officer on the ground that there was no provision under the Income-tax Act to make amendment in the return of income by modifying an application at the assessment stage without revising the return. 3. This appellant s appeal before the Commissioner of Income-tax (Appeals) was allowed. However, the order of the further appeal of the Department before the Income-tax Appellate Tribunal was allowed. The appellant has approached this court and has submitted that the Tribunal was wrong in upholding the Assessing Officer s order. He has relied upon the decision of this court in National Thermal Power Company Ltd. v. CIT [1998] 229 ITR 383 , to contend that it was open to the assessee to raise the points of law even before the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. Reference may be made to National Thermal Power Co. Ltd. v. CIT [1998] 229 ITR 383, where the Supreme Court observed that (page 386): The power of the Tribunal in dealing with appeals is thus expressed in the widest possible terms. The purpose of the assessment proceedings before the taxing authorities is to assess correctly the tax liability of an assessee in accordance with law. We do not see any reason to restrict the power of the Tribunal under section 254 only to decide the grounds which arise from the order of the Commissioner of Income-tax (Appeals). Both the assessees as well as the Department have a right to file an appeal/cross-objections before the Tribunal. We fail to see why the Tribunal should be prevented from considering questions of law arising in assessment proceedings although not raised earlier. 15. Reference may also be made to Gedore Tools P. Ltd. v. CIT [1999] 238ITR 268 (Delhi), wherein the apex court decision in National Thermal Power Co. Ltd. [1998] 229 ITR 383 has been followed. 16. In the case of Jute Corporation of India Ltd. v. CIT [1991] 187 ITR 688, while dealing with the powers of the Appellate Assistant Commissioner, the Supreme Court observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 264 of the Act ought not to have been dismissed on a mere technicality. 17. In C. Parikh Co. v. CIT (supra), the Gujarat High Court observed as under: It is clear that under Section 264, the Commissioner is empowered to exercise revisional powers in favour of the Assessee. In exercise of this power, the Commissioner may, either of his own motion or on an application by the Assessee, call for the record of any proceeding under the Act and pass such order thereon not being an order prejudicial to the Assessee, as the thinks fit. Sub-sections (2) and (3) of s. 264 provide for limitation of one year for the exercise of this revisional power, whether suo motu, or at the instance of the Assessee. Power is also conferred on the Commissioner to condone delay in case he is satisfied that the Assessee was prevented by sufficient cause from making the application within the prescribed period. Sub-section (4) provides that the Commissioner has no power to revise any order under s. 264(1): (i) while an appeal against the order is pending before the AAC, and (ii) when the order has been subject to an appeal to the Income-tax Appellate Tribunal. Subject to the above limitation, the revisional pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f of weighted deduction under Section 35B of the Act, for the first time, in a petition filed under Section 264 of the Act. On that aspect of the question, we have no doubt in our mind that the Commissioner has jurisdiction to entertain a revision petition under Section 264 of the Act. 19. In Sneh Lata Jain v. CIT (supra), the High Court of Jammu Kashmir followed the above decisions and observed that in its revisionary jurisdiction the CIT has the power to call for the record of any proceedings under this Act and is also entitled to make any enquiry himself or cause any inquiry to be made and to pass such order as he thinks fit. 20. In the present case, therefore, the mere fact the Petitioner did not make any claim in the original return and also in its revised return before the passing of the assessment order by the AO would not stand in the way of the CIT exercising revisionary jurisdiction to grant relief. The Supreme Court in its decision in Goetze India Limited v. Commissioner of Income Tax (supra) held that while the AO could not permit a claim to be made after the filing of the return without the Assessee revising it prior to the assessment order, it did not impinge on the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional Thermal Power Co. Ltd.*. Further, the Income-tax Appellate Tribunal has also expressly recorded the no objection given by the representative of the Department, allowing the appellant to set up the fresh claim to treat the amount declared as capital expenditure in the returns (as originally filed), as revenue expenditure. As a result, the objection now taken by the Department cannot be countenanced. 11. Learned Additional Solicitor General had placed reliance on the decision of this court in Goetze (India) Ltd. v. CIT** in support of the objection pressed before us that it is not open to entertain fresh claim before the Income-tax Appellate Tribunal. According to him, the decision in National Thermal Power Co. Ltd. merely permits raising of a new ground concerning the claim already mentioned in the returns and not an inconsistent or contrary plea or a new claim. We are not impressed by this argument. For, the observations in the decision in Goetze (India) Ltd. itself make it amply clear that such limitation would apply to the assessing authority , but not impinge upon the plenary powers of the Income-tax Appellate Tribunal bestowed under section 254 of the Act. In other words ..... X X X X Extracts X X X X X X X X Extracts X X X X
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