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Facts
The assessee, Culver Max Entertainment Pvt. Ltd., filed an appeal against the order dated 02.05.2024 passed by the Ld. CIT(A) for assessment year 2018-19. The appeal concerns grounds related to the disallowance of foreign tax credit, provision for gratuity, TDS/TCS credit, and deduction of education cess. The assessee's counsel argued that the CIT(A) decided the appeal without considering submissions and requested the matter be restored.
Held
The Tribunal found that the Ld. CIT(A) had primarily directed the Assessing Officer to verify the quantum of TDS and foreign tax credit. The Tribunal agreed that credit of tax, including foreign tax credit, is subject to verification by the Assessing Officer. Therefore, the matter was restored back to the Assessing Officer for reconsideration.
Key Issues
Whether the CIT(A) erred in not adjudicating specific grounds of appeal relating to foreign tax credit and other deductions, and whether the matter should be restored to the Assessing Officer for verification of TDS and foreign tax credit.
Sections Cited
Section 37 of the Act, Section 90 of the Act, Section 43B of the Act, Section 40(a)(ii) of the Act, Section 143(1)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, MUMBAI BENCH “C” MUMBAI
Before: SHRI OM PRAKASH KANT & SHRI RAJ KUMAR CHAUHAN
This appeal has been filed by the assessee against order dated 02.05.2024 passed by the Ld. Commissioner of Income-tax (Appeals) – National Faceless Appeal Centre, Delhi [in short ‘the Ld. CIT(A)’] for assessment year 2018-19, raising following grounds:
Deduction of taxes paid outside India under section 37 of the Act Deduction of taxes paid outside India under section 37 of the Act Deduction of taxes paid outside India under section 37 of the Act 1. On the facts and under circumstances of the case and in law, the On the facts and under circumstances of the case and in law, the On the facts and under circumstances of the case and in law, the Hon'ble CIT(A) erred in not adjudicating upon the Ground of appeal
No. 10 Hon'ble CIT(A) erred in not adjudicating upon the Ground of appeal
No.
10. Hon'ble CIT(A) erred in not adjudicating upon the Ground of appeal No. 10 preferred by the Appellant preferred by the Appellant relating to deduction under section 37 of the Act relating to deduction under section 37 of the Act in respect of taxes paid outside India (foreign tax credit) for which relief in respect of taxes paid outside India (foreign tax credit) for which relief in respect of taxes paid outside India (foreign tax credit) for which relief under section 90 of the Act is not available to the Appellant. under section 90 of the Act is not available to the Appellant.
2. On the facts and under circumstances of the case and in law,
2. On the facts and under circumstances of the case and in law,
2. On the facts and under circumstances of the case and in law, the Hon'ble CIT(A) erred in not granting deduction of foreign taxes paid Hon'ble CIT(A) erred in not granting deduction of foreign taxes paid Hon'ble CIT(A) erred in not granting deduction of foreign taxes paid amounting to Rs. 2,56,05,104 under section 37 of the Act without amounting to Rs. 2,56,05,104 under section 37 of the Act without amounting to Rs. 2,56,05,104 under section 37 of the Act without appreciating that the same has not been claimed by the Appellant as relief appreciating that the same has not been claimed by the Appellant as relief appreciating that the same has not been claimed by the Appellant as relief under section 90 of the Act and that such c under section 90 of the Act and that such claim is not debarred by section laim is not debarred by section 40(a) ii) of the Act. 40(a) ii) of the Act. Each of the above grounds of appeal is without prejudice to and Each of the above grounds of appeal is without prejudice to and Each of the above grounds of appeal is without prejudice to and independent of one another. independent of one another.
2. At the outset before us, the Ld. counsel for the assessee At the outset before us, the Ld. counsel for the assessee At the outset before us, the Ld. counsel for the assessee submitted that the Ld. CIT(A) has decided the appeal without submitted that the Ld. CIT(A) has decided the app submitted that the Ld. CIT(A) has decided the app considering the submission of the assessee filed in respect of considering the submission of the assessee filed in respect of considering the submission of the assessee filed in respect of grounds raised and therefore may be restored back to the file of the grounds raised and therefore may be restored back to the file of the grounds raised and therefore may be restored back to the file of the Ld. CIT(A). The Ld. counsel further submitted that regarding the Ld. CIT(A). The Ld. counsel further submitted that regarding the Ld. CIT(A). The Ld. counsel further submitted that regarding the claim of foreign tax credit claim of foreign tax credit, the assessee has a the assessee has already filed rectification application before the Ld. CIT(A) rectification application before the Ld. CIT(A), which is pending. which is pending.
We have heard rival submission of the parties and perused the We have heard rival submission of the parties and perused the We have heard rival submission of the parties and perused the relevant material on record. We find that the Ld. CIT(A) has mainly relevant material on record. We find that the Ld. CIT(A) has mainly relevant material on record. We find that the Ld. CIT(A) has mainly directed the Assessing Officer to verify t directed the Assessing Officer to verify the quantum of TDS and he quantum of TDS and foreign tax credit and allow the same in accordance with law. The foreign tax credit and allow the same in accordance with law. The foreign tax credit and allow the same in accordance with law. The relevant finding of the Ld. CIT(A) is reproduced as under: relevant finding of the Ld. CIT(A) is reproduced as under: relevant finding of the Ld. CIT(A) is reproduced as under:
“DECISION The first ground is general in nature. The first ground is general in nature. The second ground submits as: The second ground submits as:
On the facts and circumstances On the facts and circumstances of the case and in law, the learned AO of the case and in law, the learned AO erred in disallowing the provision for gratuity amounting to Rs. erred in disallowing the provision for gratuity amounting to Rs. erred in disallowing the provision for gratuity amounting to Rs. 11,57,94,444 under section 43B of the Act without appreciating the fact 11,57,94,444 under section 43B of the Act without appreciating the fact 11,57,94,444 under section 43B of the Act without appreciating the fact that the amount of gratuity has been reported twice in Form 3CD under that the amount of gratuity has been reported twice in Form 3CD under that the amount of gratuity has been reported twice in Form 3CD under clause 21(e) and 26(i)(B)(b), and the amount of Rs. 11,57,94,444 has been (e) and 26(i)(B)(b), and the amount of Rs. 11,57,94,444 has been (e) and 26(i)(B)(b), and the amount of Rs. 11,57,94,444 has been suo-moto disallowed by the Appellant in the ROI. disallowed by the Appellant in the ROI. The Appellant prays that the double disallowance of Rs. 11,57,94,444 The Appellant prays that the double disallowance of Rs. 11,57,94,444 The Appellant prays that the double disallowance of Rs. 11,57,94,444 made by the learned made by the learned AO based on the Intimation under section 143(1) shoul on the Intimation under section 143(1) should be deleted. d be deleted. The AO is directed to verify whether the appellant has suo directed to verify whether the appellant has suo-moto disallowed the moto disallowed the amount in If so, he is directed to delete the addition, to prevent any double addition If so, he is directed to delete the addition, to prevent any double addition If so, he is directed to delete the addition, to prevent any double addition taking place. THIS GROUND IS PARTLY ALLOWED. THIS GROUND IS PARTLY ALLOWED. The third ground submits as: The third ground submits as: On the facts and circumstances of the case and in law, the learned AO the facts and circumstances of the case and in law, the learned AO the facts and circumstances of the case and in law, the learned AO erred in not granting credit erred in not granting credit for TDS to the extent of Rs. 124,45,44,224 claimed in the ROl. for TDS to the extent of Rs. 124,45,44,224 claimed in the ROl. for TDS to the extent of Rs. 124,45,44,224 claimed in the ROl. On the facts and circumstances of the case and in law, the leamed AO On the facts and circumstances of the case and in law, the leamed AO On the facts and circumstances of the case and in law, the leamed AO erred in not granting cred erred in not granting credit of TDS of Rs. 49,28,303 claimed additionally 49,28,303 claimed additionally before the learned AO during the course before the learned AO during the course of assessment proceedings (not of assessment proceedings (not claimed in the ROl). claimed in the ROl). On the facts and circumstances of the case and in law, the leared AO erred On the facts and circumstances of the case and in law, the leared AO erred On the facts and circumstances of the case and in law, the leared AO erred in not granting credit for TCS to the ext in not granting credit for TCS to the extent of Rs. 53,600 claimed in the ent of Rs. 53,600 claimed in the ROI. The Appellant prays that the leamed AO be directed to grant additional The Appellant prays that the leamed AO be directed to grant additional The Appellant prays that the leamed AO be directed to grant additional credit of TDS of Rs. 124,94,72,527 and TCS of Rs. 53,600. credit of TDS of Rs. 124,94,72,527 and TCS of Rs. 53,600. The AO is directed to verify the quantum of TDS and TCS, and if found The AO is directed to verify the quantum of TDS and TCS, and if found The AO is directed to verify the quantum of TDS and TCS, and if found correct, credit may correct, credit may be given. THIS GROUND IS PARTLY ALLOWED TOO. THIS GROUND IS PARTLY ALLOWED TOO. The fourth ground submits as: The fourth ground submits as: On the facts and circumstances of the case and in law, the learned AO On the facts and circumstances of the case and in law, the learned AO On the facts and circumstances of the case and in law, the learned AO erred in not granting deduction of Education Cess and Secondary & Higher erred in not granting deduction of Education Cess and Secondary & Higher erred in not granting deduction of Education Cess and Secondary & Higher Education Cess paid by the Appellant Education Cess paid by the Appellant while computing its taxable income. while computing its taxable income. The AO is directed to verify this aspect, and allow deduction, if due. The AO is directed to verify this aspect, and allow deduction, if due. The AO is directed to verify this aspect, and allow deduction, if due.
THIS GROUND IS PARTLY ALLOWED. THIS GROUND IS PARTLY ALLOWED. The fifth ground submits as: The fifth ground submits as: On the facts and circumstances of the case and in law, the learned AO On the facts and circumstances of the case and in law, the learned AO On the facts and circumstances of the case and in law, the learned AO erred in not granti erred in not granting relief of FTC under section 90 of the Act claimed by ng relief of FTC under section 90 of the Act claimed by the Appellant amounting to Rs. the Appellant amounting to Rs. 72,52,701. On the facts and circumstances of the case and in law, the Appellant On the facts and circumstances of the case and in law, the Appellant On the facts and circumstances of the case and in law, the Appellant wishes to make an additional claim of FTC of Rs. 1,82,274 under section wishes to make an additional claim of FTC of Rs. 1,82,274 under section wishes to make an additional claim of FTC of Rs. 1,82,274 under section 90 of the Act (no 90 of the Act (not claimed in the ROl). The appellant submits too, that it had claimed FTC of Rs. 69,99,920 under The appellant submits too, that it had claimed FTC of Rs. 69,99,920 under The appellant submits too, that it had claimed FTC of Rs. 69,99,920 under section 90 of the Act in the ROl, and that Form no. 67 had also been duly section 90 of the Act in the ROl, and that Form no. 67 had also been duly section 90 of the Act in the ROl, and that Form no. 67 had also been duly filed. Apparently, there was a typographical error in the amount of income filed. Apparently, there was a typographical error in the amount of income filed. Apparently, there was a typographical error in the amount of income and taxes paid in foreign currency and hence, during the course of paid in foreign currency and hence, during the course of paid in foreign currency and hence, during the course of assessment proceedings the Appellant submitted a rectified claim of assessment proceedings the Appellant submitted a rectified claim of assessment proceedings the Appellant submitted a rectified claim of Rs.72,75,701/- - Before me, it claims that a withholding tax certificate by one deductor, M/s Before me, it claims that a withholding tax certificate by one deductor, M/s Before me, it claims that a withholding tax certificate by one deductor, M/s Netflix Inc. was received after the fil Netflix Inc. was received after the filing of the revised ROI and completion ing of the revised ROI and completion of assessment proceedings, and hence, an additional claim of deduction of of assessment proceedings, and hence, an additional claim of deduction of of assessment proceedings, and hence, an additional claim of deduction of FTC amounting to Rs. 1,82,274 under section 90 of the Act has been made FTC amounting to Rs. 1,82,274 under section 90 of the Act has been made FTC amounting to Rs. 1,82,274 under section 90 of the Act has been made before me. The AO is directed to verify the claim of the appellant with The AO is directed to verify the claim of the appellant with The AO is directed to verify the claim of the appellant with regard to the FTC amount, and if found correct, credit of Rs.74,34,974 under section 90 FTC amount, and if found correct, credit of Rs.74,34,974 under section 90 FTC amount, and if found correct, credit of Rs.74,34,974 under section 90 of the Act may be granted. of the Act may be granted. HIS GROUND IS PARTLY ALLOWED TOO. HIS GROUND IS PARTLY ALLOWED TOO. With respect to the ground regarding charge of interest, the AO is directed With respect to the ground regarding charge of interest, the AO is directed With respect to the ground regarding charge of interest, the AO is directed to look into this, while giving to look into this, while giving effect to this order.” 3.1 In our opinion, the credit of tax including foreign tax credit In our opinion, the credit of tax including foreign tax credit In our opinion, the credit of tax including foreign tax credit is subject to verification by the Assessing Officer subject to verification by the Assessing Officer and for and for which, the Ld. CIT(A) has already directed the Assessing Officer. Accordingly, Ld. CIT(A) has already directed the Assessing Officer. Ld. CIT(A) has already directed the Assessing Officer. we restore the matter back we restore the matter back to the Assessing Officer for considering to the Assessing Officer for considering the credit of the TDS or foreign tax credit in accordance with law the credit of the TDS or foreign tax credit in accordance with law the credit of the TDS or foreign tax credit in accordance with law after verification, if such credit has if such credit has not been granted granted by the Assessing Officer. The grounds of appeal of the assessee are Assessing Officer. The grounds of appeal of the assessee Assessing Officer. The grounds of appeal of the assessee accordingly allowed fo accordingly allowed for statistical purposes.
In the result, the appeal filed by the assessee is allowed for In the result, the appeal filed by the assessee is allowed for In the result, the appeal filed by the assessee is allowed for statistical purposes.
Order pronounced in the open Court on nounced in the open Court on 27/09/2024. /09/2024.