TMI Blog2021 (10) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... that even admitted liability in respect of the incorrect foreign tax credits of ₹ 7.57 crores will stand nullified. What the respondent-assessee can at best seek is the position as on at the outcome of the first appellate order, and that is what he gets anyway when the appeal of the Assessing Officer is dismissed. The relief being sought by this petition rule 27 is thus much more than what is permissible in law. Be that as it may, the appeal of the Assessing Officer having been dismissed on merits, and, thus, the net position as at the time of the outcome of the first appeal having been allowed to be sustained, the present petition under rule 27 becomes wholly academic and infructuous, and it does not therefore call for any adjudication on merits. We, therefore, dismiss the petition as infructuous. - ITA No. 3567/Mum/19 - - - Dated:- 4-10-2021 - Pramod Kumar (Vice President) And Pavan Kumar Gadale (Judicial Member)] Dr Rajeev Harit for the appellant F V Irani for the respondent ORDER Per Pramod Kumar, VP: 1. By way of this appeal, the Assessing Officer has challenged the correctness of the order dated 26th March 2019, passed by the learned CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -ITAT-MUM; order dated 9th September 2010 in ITA No. 602/Mum/2009] wherein the coordinate bench has held so. Similar are said to be the views of the coordinate benches in the cases of Oriental Insurance Co. Ltd. vs. ACIT [2009-TIOL-172-ITAT- Del ITA No.5462 5463/del/03; order dated 27.2.2009] , Bajaj Allianz General Insurance Company Limited vs. ACIT and vice versa in ITA No.1447/PN/07 and CO. No.52/PN/2007 order dated 31.8.2009 for the Assessment Year 2003-04. JCIT vs. Reliance General Insurance Co. and vice versa [ITA Nos.3083, 2950,2951, 3084, 3085 3126/M/08 order dated 26.2.2010] Reliance General Insurance Co. vs. DCIT and vice versa [ITA No.781/M/07.1520 6262 and 2144 6554/M/2008 order dated 30.4.2010], and many other cases. We see no reasons to take any other view of the matter than the view so taken by the coordinate benches, and learned Departmental Representative also does not dispute that position. We must therefore approve the order of the learned CIT(A) for this short reason alone. The conclusions arrived at by the learned CIT(A) do not, therefore, call for any interference. 4. Learned counsel for the assessee, however, is not content even with the dismissal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity itself. The correct legal position is that the foreign tax credit, in respect of taxes paid abroad, can never exceed the Indian tax liability in respect of related income taxed abroad as also in India- as also elaborated upon in the case of Bank of India Vs ACIT [(2021) 125 taxmann.com 155 (Mum)] authored by one of us (i.e. the Vice President). It s really gracious on the part of the assessee to accept, though in a rather subtle manner though, incorrectness of its claim and let the matter rest at that. However, today when learned counsel pleads for our quashing the reassessment itself, what he really seeks is that the entire reassessment is quashed, and thus even the withdrawal of excess foreign tax credit to the extent of ₹ 7.57 crores, against which the assessee consciously did not offer any resistance by not challenging it in appeal on merits, must stand nullified. When we realized this fallout of the petition under rule 27, and we put it to the assessee, learned counsel candidly accepted this position and submitted that if the reassessment itself is quashed, all consequences must follow. He submits that whatever rights a taxpayer has under the law have to be protecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven to the respondent. Therefore, even if we are to uphold the plea of the assessee against reopening of the assessment, it has to essentially come with a rider that the relief eventually to be given to the assessee will not exceed the relief available to the assessee in the impugned order passed by the CIT(A). When the grievance against the withdrawal of foreign tax credit to the tune of ₹ 7.57 crore was not even challenged in appeal before the CIT(A), the assessee will not be eligible for any relief on that aspect- directly or indirectly. The assessee thus gets no additional advantage by the petition under rule 27. 8. While dealing with this issue, it is useful to take note of certain judicial precedents from the Hon ble jurisdictional High Court. In the case of CIT Vs Hazarimal Nagji Co [(1962) 46 ITR 1168 (Bom)], Their Lordships upheld the plea of the assessee that any additional ground could be raised by the Tribunal, even if not agitated before the CIT(A), as long as it supports, and to the extent it does support, the conclusions arrived at by the first appellate authority. However, even then, Their Lordships put in a word of caution by agreeing with the propositio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o him, but he is not entitled to raise a ground so as to work adversely to the appellant and in his favour. [Emphasis, by underlining, supplied by us] 9. On a similar note, Hon ble jurisdictional High Court in the case of CIT Vs Jamnadas Virji Shares and Brokers Pvt Ltd [(2013) 258 ITR 458 (Bom)], were dealing with a situation in which the Tribunal was dealing with an appeal filed by the Assessing Officer against an order passed by the CIT(A), and no cross-appeal or cross-objection, against the said order, filed by the assessee was pending for adjudication by the Tribunal. The assessee, however, filed a petition under rule 27, and in effect, sought relief going beyond the relief given by the CIT(A). On these facts, the question arose whether, in such a situation and within the limited scope of rule 27, the Tribunal could grant relief beyond the relief granted by the CIT(A). Their Lordships decided this question in negative and in favour of the revenue authorities, and reversing the relief granted by the Tribunal, observed as follows: 10. Rule 27 of the Income Tax (Appellate Tribunal) Rules, 1963 provides as follows:- 27. Respondent may support order on grounds d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal would have to be confirmed only to the extent to which it restores the proceedings to the Assessing Officer as regards the amount of ₹ 13.73 lacs. We, accordingly, answer the question of law in the negative, in favour of the Revenue and against the Assessee. 10. Quite clearly, therefore, in a situation in which the respondent to an appeal has not filed a cross-appeal or a cross-objection, but has simply moved the petition under rule 27, one of the limitations of invoking rule 27 is that the appellant cannot be worse off vis- -vis the position he was in when he presented the present appeal. In the present case, however, if entire reassessment proceedings are to be quashed- as is sought by way of a petition under rule 27, the Assessing Officer will be in a worse position vis- -vis the position if he was not to come in appeal, in the sense that even admitted liability in respect of the incorrect foreign tax credits of ₹ 7.57 crores will stand nullified. What the respondent-assessee can at best seek is the position as on at the outcome of the first appellate order, and that is what he gets anyway when the appeal of the Assessing Officer is dismissed. The relief b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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