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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 ..... ed 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 in foreign currency and outside India, to the expatriates of the appellant working in India, and the taxes paid by (be appellant (on lax on tax basis) with respect to such salaries, where the said salaries and taxes aggregated to Rs.9,62,39,916/-, while computing the business profits of the permanent establishment of the appellant chargeable to tax in India, within the meaning of Indo-Japan tax treaty, by allegedly invoking the provisions of section 40 (a) (i) of the Act, when the restrictions envisaged in the said section are not applicable in the case of the appellant in view of the express provisions of the Indo-Japan tax treaty. 6 (b) That on the facts and in the circumstances of tile case, the salaries paid by the appellant in foreign currency and outside India the expatriates of the appellant working in India, and the taxes paid by the appellant (on tax on tax basis) with respect to such sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (supra) has been confirmed by the Hon'ble Delhi High Court by dismissing the Departmental Appeal in ITA.No.604/2015, Dated 08.04.2016. Learned Counsel for the Assessee also submitted that ITAT, Delhi Bench in A.Y. 2010-2011 in the case of same assessee following the above decisions of the Tribunal and Hon'ble Delhi High Court, allowed the similar claim of assessee in ITA.No.1174/2015 Dated 25.01.2017. 20.2 The Ld. D.R. did not dispute the same. 21. Following the Order of the Tribunal and Hon'ble Delhi High Court in the case of same assessee on identical facts, we set aside the Orders of the authorities below and delete the addition. Ground No.6 (a) and (b) of appeal of Assessee is allowed." 4. It was thereafter that the matter came to be placed before the concerned AO for passing an appeal effect order. We note that while examining the aforesaid issue, the AO has observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant 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 Appellate Tribunal. 4. The decision in question is that the power of the Tribunal under section 254 of the Income-tax Act, 1961, is to entertain for the first time a point of law provided the fact on the basis of which the issue of law can be raised before the Tribunal. The decision does not in any way relate to the power of the Assessing Officer to entertain a claim for deduction otherwise than by filing a revised return. In the circumstances of the case, we dismiss the civil appeal. However, we make it clear that the issue in this case is limited to the power of the assessing authority and does not impinge on the power of the Income-tax Appellate Tribunal under section 254 of the Income-tax Act, 1961. There shall be no order as to costs." 8. We also deem it apposite to notice the judgment of our Court in Commissioner of Income Tax vs. Jai Parabolic Springs Ltd 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so 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 that (page 386 of 229 ITR): "An appellate authority has all the powers which the original authority may have in deciding the question before it subject to the restrictions or limitations, if any, prescribed by the statutory provisions. In the absence of any statutory provision, the appellate authority is vested with all the plenary powers which the subordinate authority may have in the matter. There is no good reason to justify curtailment of the power of the Appellate Assistant Commissioner in entertaining an additional ground raised by the assessee in seeking modification of the order of assessment passed by the Income-tax Officer. This court further observed that there may be several factors justifying the raising of a new plea in an appeal and each case has to be considered on its own facts. The Appellate Assistant Commissioner mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use 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 powers conferred on the Commissioner under s. 264 are very wide. He has the discretion to grant or refuse relief and the power to pass such order in revision as he may think fit. The discretion which the Commissioner has to exercise is undoubtedly to be exercised judicially and not arbitrarily according to his fancy. Therefore, subject to the limitation prescribed in s. 264, the Commissioner in exercise of his revisional power under the said section may pass such order as he thinks fit which is not prejudicial to the Assessee. There is nothing in s. 264 which places any restriction on the Commissioner's revisional power to give relief to the Assessee in a case where the Assessee detracts mistakes on account of which he was over-assessed after the assessment was completed. We do not read any such embargo in the Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 scope of the revisionary jurisdiction of the CIT. 21. The decision in Orissa Rural Housing Development Corporation (supra) is distinguishable on facts. In the instant case, the order of the CIT(A) in the first round for AY 1997-98 itself recognized that the Petitioner could claim the deduction for provision for the arrears of revised wages in the subsequent AY 1998-99. The observations in Goetze India Limited (supra) were explained by this Court in Sam Global Securities Limited (supra) where in para 8 it held that "wherein deduction claimed by way of a letter before the Assessing Officer, was disallowed on the ground that there was no provision under the Act to make amendment in the return without filing a revised return. Appeal to the Supreme Court, as the decision was upheld by the Tribunal and the High ..... X X X X Extracts X X X X X X X X Extracts X X X X
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