2025 (5) TMI 15 - AT - Income Tax

Revision u/s 263 - PCIT jurisdiction u/s 263 to revise the AO order giving effect to the Tribunal s earlier directions - HELD THAT - CIT has no jurisdiction to revision the order giving effect dated 23.03.2022. It is the Tribunal or Higher forums has jurisdiction to see the order giving effect pursuant to the direction of the Tribunal. CIT who is lower in hierarchy than the Tribunal cannot sit in appeal on the order giving effect ( OGE in short) dated 23.03.2022 under revisionary powers u/s 263 by saying that the OGE is erroneous and prejudicial to the interest of the revenue. In the order giving effect (OGE) pursuant to direction of the higher authorities the AO (JAO) has limited scope. In fact he has to follow the direction of the higher forum in letter and spirit. In fact the AO has followed the law what was there at that point of time. CIT under revisionary powers u/s 263 of the Act cannot extend the scope of AO beyond the direction of the Tribunal. Hence revisionary jurisdiction/power invoked by the CIT in this case is patently wrong and void ab-initio. Therefore order of the CIT u/s 263 is quashed on this ground.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Tribunal are:

• Whether the Principal Commissioner of Income Tax (PCIT) had jurisdiction under Section 263 of the Income Tax Act to revise the Assessment Officer's (AO) order giving effect to the Tribunal's earlier directions.
• Whether tax deduction at source (TDS) was required on payments made to M/s Exprover in Belgium for fees for technical services, particularly in light of the Most Favoured Nation (MFN) clause in the Double Taxation Avoidance Agreement (DTAA) between India and Belgium.
• Whether the subsequent Supreme Court decision affecting the applicability of the MFN clause rendered the AO's earlier order erroneous.
• Whether the AO's order was erroneous or prejudicial to the interests of the revenue warranting revision under Section 263.
• Whether other issues raised by the PCIT, such as verification of interest on borrowings and foreign exchange losses, fall within the scope of the Section 263 revision.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Jurisdiction of PCIT under Section 263 to revise the AO's order giving effect to Tribunal's directions

Relevant legal framework and precedents: Section 263 empowers the Commissioner to revise an assessment order if it is erroneous and prejudicial to the interests of the revenue. However, the scope of such revision is limited when the AO is merely giving effect to directions of a higher forum such as the Tribunal.

Court's interpretation and reasoning: The Tribunal held that the PCIT, being lower in hierarchy than the Tribunal, cannot exercise revisionary jurisdiction over an order giving effect to the Tribunal's directions. The AO's role in such an order is limited to implementing the Tribunal's directions in letter and spirit, without scope for independent re-examination of the issues decided by the Tribunal.

Key evidence and findings: The order giving effect dated 23.03.2022 was passed pursuant to the Tribunal's earlier directions. The PCIT's attempt to revise this order under Section 263 was held to be beyond jurisdiction.

Application of law to facts: The Tribunal emphasized that the revisionary powers under Section 263 cannot be invoked to sit in appeal over the Tribunal's order or to extend the AO's scope beyond the directions given by the Tribunal.

Treatment of competing arguments: The PCIT argued that the AO's order was erroneous and prejudicial. The Tribunal rejected this, holding that the PCIT's jurisdiction is circumscribed in such circumstances.

Conclusions: The PCIT had no jurisdiction to revise the AO's order giving effect to the Tribunal's directions. The revisionary order under Section 263 was quashed as void ab initio.

Issue 2: Taxability of payments to M/s Exprover and applicability of MFN clause in the India-Belgium DTAA

Relevant legal framework and precedents: The taxability of fees for technical services is governed by Section 9(1)(vii) and Section 9(2) of the Income Tax Act, as well as the provisions of the relevant DTAA. The MFN clause in the DTAA between India and Belgium was considered for extending benefits applicable to other countries. The Supreme Court's decision in the Nestle case held that the MFN clause is not applicable unless notified by the Government of India.

Further, the Tribunal relied on its own earlier decisions (including Ishikawajima Harima Heavy Industries Co Ltd) and other precedents that held that prior to the 2010 amendment of Section 9(2), fees for technical services rendered outside India were not taxable in India.

Court's interpretation and reasoning: The AO had held that the payments to M/s Exprover were for marketing services and did not constitute fees for technical services under the DTAA. Therefore, no tax was deductible at source. The PCIT challenged this based on the Supreme Court's ruling on the MFN clause. However, the Tribunal noted that the AO's order was in line with the law prevailing at the time and supported by High Court and Tribunal decisions.

Key evidence and findings: The Tribunal referred to the earlier ITAT order in the assessee's own case for subsequent years, which confirmed non-taxability of payments to M/s Exprover before the 2010 amendment. The amendment was retrospective but held not to affect the payer's obligation retrospectively due to impossibility of performance.

Application of law to facts: Since the payments were for marketing and not technical services, and the MFN clause was not notified, the payments were not taxable in India for the assessment year under consideration. The AO's conclusion was consistent with the law at the time.

Treatment of competing arguments: The PCIT contended that the MFN clause should apply following the Supreme Court decision, making the payments taxable. The assessee's counsel argued that the AO's order was not erroneous as it was based on prevailing law and that the PCIT's revision was academic, given subsequent Tribunal rulings.

Conclusions: The Tribunal upheld the AO's finding that payments to M/s Exprover were not taxable in India and no TDS was required. The MFN clause was inapplicable without Government notification.

Issue 3: Effect of subsequent Supreme Court decisions on the correctness of the AO's order

Relevant legal framework and precedents: The principle that a subsequent decision of the Supreme Court does not render an earlier order erroneous if it was passed in accordance with the law prevailing at that time was noted. This was supported by the Chennai Tribunal's decision in a similar case (Mis. Hayland Exports Pvt Ltd).

Court's interpretation and reasoning: The Tribunal agreed that the AO's order was not erroneous merely because subsequent Supreme Court rulings altered the legal landscape. The AO's order must be judged based on the law and decisions available at the time of assessment.

Key evidence and findings: The AO's order was based on existing High Court decisions favorable to the assessee, and the Tribunal's own subsequent rulings confirmed the approach.

Application of law to facts: The AO could not have anticipated retrospective amendments or subsequent judicial pronouncements when passing the order. Therefore, the order was not erroneous or prejudicial.

Treatment of competing arguments: The PCIT argued that the Supreme Court decision rendered the AO's order erroneous. The Tribunal rejected this, emphasizing the settled principle that retrospective changes do not affect prior orders unless the law at that time was misapplied.

Conclusions: The AO's order was not erroneous or prejudicial despite subsequent judicial developments.

Issue 4: Miscellaneous issues regarding interest on borrowings and foreign exchange loss verification

Relevant legal framework and precedents: Section 263 revision must be within the limitation period and must relate to errors prejudicial to revenue. Issues unrelated to the Tribunal's directions or raised in the original assessment order beyond the limitation period cannot be reopened.

Court's interpretation and reasoning: The Tribunal observed that the PCIT's directions to verify interest and foreign exchange loss issues were not part of the Tribunal's directions and related to the original assessment order dated 19.10.2011.

Key evidence and findings: These issues were time-barred for revision under Section 263.

Application of law to facts: Since these matters were outside the scope of the current revision and barred by limitation, the PCIT could not validly raise them in the Section 263 order.

Treatment of competing arguments: The PCIT sought to include these issues in the revision. The Tribunal rejected this as impermissible.

Conclusions: The PCIT's directions on these issues were invalid and outside the scope of the Section 263 revision.

3. SIGNIFICANT HOLDINGS

The Tribunal's crucial legal reasoning includes the following verbatim excerpt:

"The ld. CIT has no jurisdiction to revision the order giving effect dated 23.03.2022. It is the Tribunal or Higher forums has jurisdiction to see the order giving effect pursuant to the direction of the Tribunal. The CIT who is lower in hierarchy than the Tribunal cannot sit in appeal on the order giving effect ('OGE' in short) dated 23.03.2022 under revisionary powers u/s 263 of the Act by saying that the OGE is erroneous and prejudicial to the interest of the revenue."

Core principles established:

• The revisionary powers under Section 263 cannot be invoked to challenge an order giving effect to the directions of a higher forum such as the Tribunal.
• Payments for marketing services to a foreign entity are not taxable as fees for technical services under the DTAA unless the MFN clause is notified by the Government, and the services involve technical knowledge transfer.
• Subsequent judicial decisions do not render earlier orders erroneous if those orders were passed in accordance with the law prevailing at the time.
• Revision under Section 263 is subject to limitation and must relate to errors prejudicial to revenue; unrelated or time-barred issues cannot be reopened.

Final determinations on each issue:

• The PCIT's order under Section 263 was quashed for lack of jurisdiction to revise the AO's order giving effect to the Tribunal's directions.
• The payments made to M/s Exprover were held not taxable in India, and no TDS was required.
• The AO's order was not erroneous or prejudicial despite subsequent Supreme Court rulings.
• Other issues raised by the PCIT were outside the scope and barred by limitation.