M/S INDIAN FARMERS FERTILISER COOPERATIVE LTD.,,NEW DELHI vs. PR CIT, NEW DELHI

3.1 The assessee Society has established a branch office in Oman to oversee its investment in OMIFCO and to facilitate rendering of Personnel Placement and Technical Services to M/s OMIFCO. The branch office is independently registered as a Foreign Company Branch under the Omani laws and it is an accepted position by the Income Tax Department that the said branch office constitutes Permanent Establishment (PE) in Oman in 2 terms of Article – 5 of Double Taxation Avoidance Agreement (DTAA) between India and Oman. The said branch office maintains its own Books of Account and files Returns of Income as per the local income tax law of Oman.

4. In this case the assessee has originally filed the return of income for the Assessment Year 2010-11 on 13.10.2010 declaring total income of Rs.723,16,22,035. Subsequently revised return of income was filed on 14.10.2011 declaring income of Rs.577,15,94,117. The main reason for the variation in the total income as per the original return and revised return of income was that dividend income received by the appellant-society’s Branch in Oman from OMIFCO, Oman amounting to Rs.144,11,73,150 was excluded on the ground that the said income was earned by the P.E. of the appellant-society in Oman and as per the provisions of DTAA read with section 90 of the I.T. Act, as interpreted by the Hon’ble Apex Court in India , the said income was assessable only in Oman and not in India.

5. The case of the assessee was picked up for scrutiny and notices u/s.143(2) and 142(1) of the I.T. Act, were issued by the Assessing Officer alongwith the detailed questionnaires. During the course of the assessment proceedings, detailed replies were filed alongwith supporting evidences and the authorized representatives of the assessee-society duly attended before the Assessing Officer from time to time as also acknowledged in the assessment order. All necessary details and particulars were duly furnished and the case was examined minutely by the Assessing Officer and discussed with the authorized representatives of the appellant- society. The assessment was completed u/s.143(3) of the I.T. Act, 1961 on 28.2.2014 by the AO who made the following additions:-

(Rupees) 1. Dividend income received from OMIFCO 144,11,73,150

2. Disallowance u/s.43B 15,94,113

3. Disallowance u/s.14A read with Rule 8D of the 31,33,42,000 I.T. Rules.

4. Disallowance of Horticulture expenses 60,70,000

6. While completing the assessment, inter alia, the Assessing Officer allowed tax credit of a sum of Rs.41,52,45,771/- in respect of the dividend income of Rs.144,11,73,150 received by the appellant-society from OMIFCO. As mentioned above, the aforesaid dividend income was simultaneously brought to the charge of tax by the Assessing Officer after rejecting the assessee’s claim that the said income could not be taxed under the Indian Income-tax Law. It may be mentioned that as per the Omani Tax Laws, exemption was granted to the dividend income by virtue of amendments made in the Omani Tax Laws in the year 2000. However, by virtue of the provisions of Article-25(4) of DTAA r.w.s 90(1)(a)(ii) of the IT Act, the Assessing Officer, after thoroughly examining the issues and after full application of mind allowed credit for the aforesaid tax which would have been payable in Oman but for the exemption granted.

7. Subsequent to the completion of the assessment the learned Pr. C.I.T.-11, Delhi issued a show cause notice dated 22.12.2015 u/s.263 of the I.T. Act. For ready reference, the contents of the show cause notice are reproduced below:-

“The assessment records of M/s Indian Farmers Fertiliser Cooperative Limited for the A.Y. 2010-11 were called for and examined. The Assessing Officer framed assessment on28.02.2014. The AO computed the income of the assessee as under:-

Net taxable income as shown in revised return Rs. 577,15,94,117

Add: (a) Dividend income received from OMIFCO, Oman (para 3) Rs. 144,11,73,150 (b) Disallowance u/s. 43B Rs. 15,94,113 (c) Disallowance u/s. 14A r.w.r. 8D(2)(ii) Rs. 31,33,42,000 (d) Disallowance of horticulture expenses Rs. 60.70.000 Taxable income Rs. 753,37,73,380

2. The AO computed the tax as per ITNS 150(copy placed as annexure). The perusal of income tax computation form it is found that the AO gave relief u/s 90 of Rs. 41,52,45,771/- and determined the demand of Rs. 18,27,23,245/. The assessee moved an application u/s. 154. The AO passed order u/s 154 on 18.03.2014 and again computed income as per ITNS150 and determined the tax on assessed income of Rs.238,56,35,456/- and gave credit of prepaid taxes and relief u/s.90 of Rs.228,72,86,443/- and determined the demand of Rs.17,44,89,190/-. Apparently the credit of prepaid taxes and relief includes relief u/s 90 of Rs.41,52,45,771/-.

3. The assessee went in appeal before the CIT(A). The CIT(A) passed order on 09.03.2015and upheld the addition of Rs. 144,11,73,150/- on account of dividend received from oversea joint venture OMIFCO(OMAN).

4. As per order sheet entry the AO conducted various hearings wherein Sh. Rawat and Sh. Atul Chhabra attended the proceedings. Vide order sheet entry dated 20.02.2014 the assessee was asked as regards the justification for non taxability of income from 'OMAN' division with details of dividends received.

7. The AO did not accept the contention of the assessee and taxed the dividend income. The AO did not apply his mind as where the assessee has not paid any tax in OMAN/and there should not be any question of giving credit of Rs.41,52,45,771/-.

8. The AO did not apply his mind in regard to section 90 which authorizes the two governments to enter into an agreement for avoidance of double taxation.

9. The Government issued a notification No. SO 563(E) dated 23.09.1997 which is reproduced as under:-

“WHEREAS the annexed agreement between the Government of the Sultanate of Oman and the Government of the Republic of India for the Avoidance of Double Taxation and the 5

Prevention of Fiscal Evasion with respect to taxes on income has entered into force on the 3rd June, 1997 after the notification by both the Contracting States to each other of the completion of the proceedings required by their laws for bringing into force of the said agreement in accordance with paragraph I of Article 29 of the said agreement:

Now, therefore, in exercise of powers conferred by section 90 of the Income-tax Act, 1961 (43 of 1961), the Central Government hereby directs that all the provisions of the said agreement shall be given effect to throughout the territory of India. ”

The perusal of the notification shows that the agreement has been entered into in exercising powers conferred by section 90 of the IT Act, 1961. The relevant part of section 90 is reproduced as under:- 90. Agreement with foreign countries or specified territories.- (1) The Central Government may enter into an agreement with the Government of any country outside India or specified territory outside India,— (a) for the granting of relief in respect of— (i) income on which have been paid both income-tax under this Act and income-tax in that country or specified territory, as the case may be, or (ii) income-tax chargeable under this Act and under the corresponding law in force in that country or specified territory, as the case may be, to promote mutual economic relations, trade and investment, or (b) for the avoidance of double taxation of income under this Act and under the corresponding law in force in that country or specified territory, as the case may be, or

10. Section 90 clearly mentions that the relief is to be granted in respect of income on which have been paid both income tax under this Act and income tax and income tax in that country or specified territory, as the case may be. The section 90(l)(a)(ii) is in regard to the income tax chargeable under this Act and under the corresponding law in force in that country and moreover, income tax should be chargeable in the Act of either country.

11. From the perusal of record it is found that the assessee has claimed tax credit even though no tax has been paid in either country.

12. The Central Government derives its authority to enter into agreement for avoidance of double taxation from section 90 of the IT Act. The primary objective is not to tax the same income in both the countries. The AO failed to notice this bare provision of section 90 that the assessee should have paid the taxes. In the present case there is no dispute that the assessee has not paid any tax on the dividend income.

14. The "tax incentive" has not been defined in the Double Taxation Agreement. Therefore we have to go to Article 3(2) which reads as under:-

“As regards the application of this Agreement by a Contracting State, any term not defined therein shall, unless the context otherwise requires, have the meaning which it has under the law of that Contracting State concerning the taxes to which this Agreement applies."

15. As per Article 3(2) the meaning of expression "tax incentive" has to be taken from meaning given in the IT Act. Even in the IT Act, the term "tax incentive" has not been defined. The AO did not notice the primary condition of Article 25(4) that tax incentive should be designed to promote economic development. The AO simply accepted the version of the assessee and did not apply his mind as to the veracity of the statement given by the assessee. The AO did not notice what are the tax incentives which are designed to promote economic development. In the present case, the dividend income has been made exempt under Article 8(BIS) under the OMANI Companies Income Tax Law. This would be a mere assumption that such exemption is designed to promote economic development. The AO failed to notice this vital difference.

16. The AO failed to examine the fact as whether Article 25(4) of the Double Taxation Agreement has been fully complied with by the assessee. It cannot be presumed that the exemption granted under Article 8(bis) is meant for economic development. There has to strict interpretation of the Statute. Article 8(bis) does not indicate that the exemption is designed for economic development.

17. Capitalization of Interest- 36(l)(iii) proviso:

The perusal of Balance sheet for the A.Y. 2010-11 shows that the assessee has shown loan funds of Rs. 11,532.17 crores. Whereas the share capital and reserves and surplus figure is Rs. 4,270.50 crores. The total of the balance sheet is Rs. 16,319.45 crores. This means the 7 assessee is having only 26.16% own funds. The perusal of balance sheet further shows that the assessee has shown capital work in progress of Rs. 333 crores. The assessee has not shown any figure of interest pertaining to capital work in progress. The schedule 6(43rd Annual Report) showing capital work in progress does not show any interest component. The AO did not make any inquiry as regards the application of section 36(l)(iii) proviso. As per para 13 of significant accounting rules, the assessee has mentioned that borrowing costs that are attributable to the acquisition or contract of qualifying asset are capitalized as per the cost of such assets. But the assessee has not given any detail about interest component in the capital work in progress which is to be calculated for the period beginning from the date on which the capital was borrowed for acquisition of the asset till the date of which such asset was first put to use. The AO did not make any inquiry or raised any query for calculating the interest to be capitalized u/s 36(l)(iii) proviso. The AO did not make any further inquiry as whether the calculation made by the assessee, if any, is correct or not.

18. The assessee has attached Annexure E as major additions to fixed assets in the A.Y. 2010-11. The total amount is Rs. 37.67 crores. The AO has not made any inquiry as regards the interest component which would be liable to be capitalized as per section 36(l)(iii) proviso.

19. The assessee has shown Loans & Advances under schedule ll (43rd Annual Report) of Rs. 27 crores. The AO has not asked for the purpose of such advances as whether these are for business purpose or not. Whether some of the advances are meant for acquisition of capital asset. If that is so, then section 36(l)(iii) proviso would come into operation. No such queries have been raised by the AO nor any explanation given by the assessee. The assessee in schedule 20(43rd Annual Report), Para 1 has 20. mentioned that estimated value of contracts (net of advances) to be executed on capital account and not provided for amount to Rs. 436.36 crores. Again the assessee has not mentioned the element of interest pertaining to these contracts. 21. 36(l)(iii):

The assessee has shown investment of Rs.7,531.28 crores and the detail is given underschedule 7(43rd Annual Report). Schedule 7(43rd Annual Report) shows that the assessee has made long term investments. Although the assessee is having borrowed funds to the extent of74% yet the AO has not raised any query as regards the interest component attributable to such investments and how it is allowable under the business head i.e. u/s 36(l)(iii). The assessee has not established any nexus as regards the 8 utilization of funds from own sources or funds on which interest is paid by the assessee.

23. In view of the above, I am of the opinion that the order passed by the Assessing Officer u/s. 143(3) of the I.T. Act, 1961 is erroneous in so far as it is prejudicial to the interest of the revenue. You are given an opportunity of being heard and show cause as to why the impugned order be not enhanced/modified or set-aside for fresh assessment u/s 263 of the I.T. Act, 1961. Your case is fixed for hearing on 04.01.2016 at 3:30 pm.”

8. On the very next day i.e. on 23.12.2015, the learned Pr. C.I.T. issued a letter purported to be a second show cause notice u/s.263, the contents of which are reproduced below:-

“In continuation to this office show cause notice u/s. 263 for the A.Y. 2010-11 dated22.12.2015 issued vide F. No. Pr. CIT- ll/Show Cause/263/2015-16/1175 the following observations are also made.

2. Ongoing through the Annual report it is found that the assessee has following associates:- (i) IFFCO-Tokio General Insurance Company Ltd. (ii) Oman India Fertiliser Company S.A.O.C. (iii) Jordan India Fertiliser Company, L.L.C. (iv) IFFCO Chhattisgarh Power Ltd. (v) IFFCO Kisan Sanchar Ltd. (vi) IFFCO Kisan SEZ Ltd. (vii) Industires Chimiques Du Senegal (viii) Kisan International Trading, FZE (ix) National Commodity & Derivatives Exchange Ltd. (x) National Collateral Management Services Ltd. (xi) Indian Potash Limited 9 (xii) IFFCO Kisan Bazar & Logistics Ltd. (xiii) Indian Farm Forestry Development Cooperative Ltd. (xiv) IFFCO Foundation (xv) Cooperative Rural Development Trust (xvi) IFFCO Kisan Sewa Trust (xvii) GrowMax Agri Corp. (xviii) Aria Chemicals (Orissa) Ltd.

3. The assessee has shown dividend income from OMIFCO OMAN, Indian Potash Limited. The AO has not made any inquiry as regards the income which might have been received or due to the assessee from associates as mentioned above. The assessee has also not attached any documents as regards the balance sheet, P&L A/c etc. of associates where the assessee is having interest. For example, the assessee has simply shown dividend income from OMIFCO OMAN but no other document has been asked by the AO or given by the assessee. The assessee would be taxable on the global income irrespective of the associates from which the assessee derives income. The assessee may be eligible for any kind of allowance as per Double Taxation Agreement if any with any other country.

4. In Para 22 of show cause No. 1175 dated 22.12.2015 it has been asked about the rental income. It is further clarified that the assessee may be showing rental income from communication towers from telecom companies. If that is the case, then the case of the assessee would not fall under the head Income from House Property as these communication towers cannot be called as buildings or lands appurtenant thereto.

5. Your case is fixed for hearing on 04.01.2016 at 3:30 pm, as already intimated in show cause notice u/s. 263 dated 22.12.2015.”

9. In response to the above Show Cause Notice, the Assessee file a detailed reply dated 11th January 2016 as well as 19th January 2016 which are compiled in the paper book filed with us (pages 355-390). To summarize the assessee has raised the following contentions:

• That the Assessing Officer has conducted detailed enquiries year after year and it was only after examination of all facts that the credit for deemed tax paid was allowed; • That the Assessing Officer had examined the claim in the light of Article 25(4) of India-Oman DTAA as well as Section 90 of the Income Tax Act, 1961; • That in light of the above fact the Assessing Officer had taken a plausible view which the Ld. PCIT cannot substitute. Several case laws were cited and compiled in support of this contention.

• That on merits as well on analysis of the provisions of India-Oman DTAA the claim of the assessee ought to have been allowed.

• That in respect of capitalization of interest u/s 36(1)(iii) proviso the assessee submitted that the same was in line with accounting policy regularly followed , certificate of statutory auditors , that the free reserves were sufficient enough to cover up the addition of fixed assets as well as CWIP , • That the assessee company had also capitalized interest of Rs.7.08 crores following a consistent accounting policy, as disclosed at page No.258 of the Paper book, in the audited financial statements from year to year.

• Further the assessee has also stated that detailed material was called for and submitted before the Assessing Officer. The assessee has also cited several case laws supporting its contention that on merits no disallowance u/s 36(1)(iii) is called for.

“13. This is a general exemption for every person who so ever earns dividend income. It is not necessary that any shareholder who earns dividend would be promoting the economic development. It is mere investment in a particular company. A general exemption cannot be stretched to say that this is designed for economic development whereas article 25(4) clearly mentions that the incentive should be designed for economic development. You may kindly note even the word design which means there would have to be some conscious effort. The English meaning of design is to do or plan (something) with a specific purpose in mind. Giving a general exemption does not lead to a specific purpose in mind. General exemption does not show that there is a specific purpose. If that is so, then the same should have been incorporated in the Sultani degree. The Sultani degree till date has not thought upon for the last 16 years, to amend the Sultani degree so as to incorporate that exemption given to dividend income is designed for economic development within the purview of article 25(4) of Double Taxation Agreement. Please offer your comments.”

…………….. ……………. ………………

“As an exception from the provisions of Article (8) of this law, tax shall not apply to the following:-

3) Dividends received by the company from its ownership of shares, portions or shareholding in the share capital of any other company.

4) Profits or gains realized by the company from the sale or disposal of securities registered in Muscat Securities Market.”

30. In the opinion of the revenue it is just an opinion from an officer of the Oman in regard to interpretation of article 8(bis) and cannot take the form of a statute until and unless the officer is authorized or derives authority from the Omani Tax Law.

31.1 On perusal of Omani Tax Law, it is found that the Secretary General for taxation does not derive any authority for issuing such letter that has the sanctity of a law for interpreting a particular article. Article 4(Bis) has a reference of the Secretary General. As per article 2(6)(Bis) a Secretary General means the Secretary General for taxation at the Ministry of Finance which is mentioned in article 4(Bis) of the Law. … ……………… ………………. ………………

The A O would refer the matter to the concerned authorities who are responsible for entering into Double Taxation Agreement. The A O, through proper channel, would write a letter to the officers of the Department perhaps FTD who may request the Omani Government as regards the interpretation of article 25(4) of TDAA with particular emphasis on the word designed for economic development. The A O would narrate all the facts and also send a copy of the order u/s.263 passed by me wherein I have made certain observations as regards the interpretation. It is quite possible that both the Governments i.e. India and Oman may reach at a conclusion that may be in favour of Revenue or in favour of the assessee. Pending any communication from the concerned authorities, the view may be that the assessee is not entitled for tax credit. The process should be started in the month of April itself so that necessary communication could come in time as the assessment has to be framed u/s.143(3) / 263 within the time limited.”

“8.3 For better understanding, these grounds have been divided into several categories as mentioned above and it would be convenient to proceed with further elaboration category- wise, in the following submissions:-

(a) Deemed Tax Credit on Dividend Income from OMIFCO: In response to the show cause notice issued by the learned Pr. CIT, the appellant-society filed a comprehensive written reply dated 11th January, 2016 wherein the factual and the legal position was fully explained and it would be worthwhile to reproduce below the relevant part of this written reply:- “3.1.2 On the facts in our case, as pointed out in the Notice itself, the Ld. A.O had specifically enquired from the Society the following questions at Point 29 and 30 of the Questionnaire issued as part of the Scrutiny Proceedings on 30th Sep,2013 :- “29.In respect of any Income covered in DTAA, please furnish detailed note with copy of respective agreement and also give reasons for claiming relief u/s 90 of the ITAct,1961.

under Article 25(4) of the DTAA read with Section 90(1)(a)(ii) of the IT Act. This reply detailed out the relevant provisions of the Omani Tax Law including Article 8 (bis) which governed the Dividend Exemption after having been specifically amended by Royal Decree 68 of 2000 as a measure to encourage economic development. The reply specifically mentions at point B.2 the rationale for this incentive coming under the ambit of Article 25(4) of the DTAA. Further at point A.4 of the reply, reference had been made to the Assessment Orders passed by the Tax Authorities in Oman in the assessee’s case which specifically recorded the objective for the exemption under Article 8 (bis) to promote economic development within Oman to attract Investments. It also contained the working of the Tax Credit and judicial pronouncements in support of the claim. On the date of hearing on 26th Feb, 2014 too, the issue of Credit for deemed taxes paid in Oman and the rationale for such a provision was discussed at length with the Ld. A.O. 3.1.6 In the Assessment Order dated 28th Feb.,2014, the Ld. A.O specifically records Articles 25(2) and 25(4) of the DTAA and vide finding at Para 3.3 and 3.4 records that “in view of the above provisions”, the tax credit for taxes which would have been payable is being allowed to the assessee. 3.1.7 From the above factual matrix, it is luminescent that the Ld. A.O had not only enquired about the tax credit claim in the hearing on 20th Feb, 2014 but also analysed Article 25(4) of the DTAA (reproduced in the assessment order) in the light of our reply containing reasons for the claim as per the Royal Decree 68 of 2000 which amended Article 8 of the Omani Tax Law. After having analysed our reply only, the Ld. A.O had allowed the Tax Credit in the Assessment Order specifically giving reference to Articles 25(4) and 25(2) of the DTAA. In our reply, there was a specific reference to the following: a. The preamble of the Royal Decree which highlighted the aim of the amendment as exigencies of public good. b. The Assessment Orders passed by the Omani Tax Authorities recording the objective of the tax exemption being to promote economic development.

Thus, it cannot be concluded at this stage now that the Ld. A.O has not applied his mind on the merits of the issue. It is incorrect to state that the A.O has “simply accepted the version of the assessee”. It is trite that the only authority competent to comment/clarify on the objective of the tax exemption given by the Omani Tax Law can be the Omani Tax Authorities only. By believing the objective of the tax incentive as stated in the Assessment Order issued by the Omani Tax Authorities, the Assessing Officer has believed the Omani Tax Authorities and not the assessee alone as claimed in the Show Cause Notice. By believing the Omani Tax authorities, the Ld. A.O has taken a perfectly legal view of allowing the Tax credit on a combined reading of Articles 25(2) and 25(4). By taking the only legally plausible view, the order cannot be termed as erroneous in the eyes of the law to fall within the scope of the Revisionary Power u/s. 263.

3.1.8 It is pertinent to note that even after the amendment to Section 263 by Finance Act 2015, Explanation - 2 clearly says that “the order is deemed to be erroneous if the order is passed allowing any relief without inquiring into the claim”. The substance of the amendment is that only a complete lack of enquiry in contrast to sufficiency of enquiry can be a ground for Revision.

3.19 In support of the above legal argument, reliance is placed on the following pronouncements of the judiciary : (Relevant extracts reproduced for ease of reference): i. SC in Max India Limited 295 ITR 282 (2007) affirming P&H HC 268 ITR 128 and following SC in Malabar Industrial Co. Ltd 243 ITR 83 (2000) “Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the Revenue. For example, when an Income-tax Officer adopted one of the courses permissible in law and it has resulted in loss of Revenue; or where two views are possible and the Income-tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the Income-tax Officer is unsustainable in law.” ii. Delhi High Court in Power Finance Corporation Ltd (2015-TIOL-2414-HC-DEL) following coordinate bench in Honda SIEL Power Products (2010-TIOL-468-HC-DEL) “From the aforesaid discussion, it is apparent that the expression prejudicial to the interest of revenue appearing in Section 263 has to be read in conjunction with the expression “erroneous” and that every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interest of the revenue. In cases where the Assessing Officer adopts one of the courses permissible in law or where two views are possible and the Income-tax Officer has taken one view, the Commissioner of Income-tax cannot exercise his powers under Section 263 to differ with the view of the Assessing Officer even if there has been a loss of revenue. Of course, if the Assessing Officer takes a view which is patently unsustainable in law, the Commissioner of Income-tax can exercise his powers under Section 263 where a loss of revenue results as a consequence of the view adopted by the Assessing Officer” iii. Delhi High Court in Sunbeam Auto Ltd.-332 ITR 167 (Delhi)-2011 “...Therefore, one has to see from the record as to whether there was application of mind before allowing the expenditure in question as revenue expenditure. Learned counsel for the assessee is right in his submission that one has to keep in mind the distinction between "lack of inquiry" and "inadequate inquiry". If there was any inquiry, even inadequate that would not by itself give occasion to the Commissioner to pass orders under Section 263 of the Act, merely because he has different opinion in the matter. It is only in cases of "lack of inquiry" that such a course of action would be open “ iv. Bombay High Court-Gabriel India Ltd.-203 ITR 108 (1993)

“Cases may be visualised where the Income-tax Officer while making an assessment examines the accounts, makes enquiries, applies his mind to the facts and circumstances of the case and determines the income either by accepting the accounts or by making some estimate himself. The Commissioner, on perusal of the records, may be of the opinion that the estimate made by the officer concerned was on the lower side and left 19 to the Commissioner he would have estimated the income at a figure higher than the one determined by the Income-tax Officer. That would not vest the Commissioner with power to re-examine the accounts and determine the income himself at a higher figure. It is because the Income-tax Officer has exercised the quasi-judicial power vested in him in accordance with law and arrived at a conclusion and such a conclusion cannot be termed to be erroneous simply because the Commissioner does not feel satisfied with the conclusion. It may be said in such a case that in the opinion of the Commissioner the order in question is prejudicial to the interests of the Revenue. But that by itself will not be enough to vest the Commissioner with the power of suo-motto revision because the first requirement, viz., that the order is erroneous, is absent.”

In view of the above submissions, it is prayed that the initiation of proceedings under Section 263 is not legally tenable and the same need to be dropped in the instant case since as amply evidenced by the record, the Ld. A.O has taken a valid legal stand on the issue of Tax Credit after full application of his mind. 3.1.10Without prejudice to the above, it is further submitted that the issue of Tax credit is part of the larger issue of the rights of the Country of Residence to tax income already subjected to tax under Article 7 of the DTAA in the country of Source which is a subject matter of appeal filed by the Society before the Hon’ble Income Tax Appellate Tribunal under S.253 of the I.T Act,1961. The subject of exemption includes an interpretation to the entire Treaty Provisions which include Article 25 too which is the subject matter of the proposed revision. Hence, in view of Explanation (c) u/s 263(1), the issue of Tax Credit cannot be subject matter of Revision.

3.2 Reply on Merits of the issue 3.2.1 On Merits, the crux of the issue is whether the exemption from tax granted under the Omani Tax Law on Dividends earned by the Society’s PE in Oman falls within the ambit of Article 25(4) of the DTAA with Oman read with Section 90 of the Income Tax Act,1961 or not.

3.2.2 To appreciate the background of Article 25(4), Section 90 which governs the power of the Central Government to 20 enter into agreement with another country is analysed below. "Agreement with foreign countries or specified territories.

90 (1) The Central Government may enter into an agreement with the Government of any country outside India or specified territory outside India, -

(a) for the granting of relief in respect of - income on which have been paid both income (i) tax under this Act and income-tax in that country or specified territory, as the case may be, or (ii) income-tax chargeable under this Act and under the corresponding law in force in that country or specified territory, as the case may be, to promote mutual economic relations, trade and investment, or (b) for the avoidance of double taxation of income under this Act and under the corresponding law in force in that country or specified territory, as the case may be, or (c) for exchange of information for the prevention of evasion or avoidance of income-tax chargeable under this Act or under the corresponding law in force in that country or specified territory, as the case may be, or investigation of cases of such evasion or avoidance, or (d) ..........”

The distinction between sub clause (a) (i) and (a) (ii) is clear. While sub-clause (a) (i) requires payment of tax as a prerequisite for claiming relief, no such pre- condition exists in sub-clause (a) (ii). The condition in sub-clause (a) (ii) is “chargeability or liability to tax”. The objective of sub-clause (a) (ii) is to promote mutual economic relations, trade and investment. In other words, the objective of sub-clause (a) (ii) is to use the tax treaty to facilitate Policy Objectives of the Government of India. Under sub-clause (a) (ii), the 21 power of the Central Government extends to grant relief not only for avoidance of double taxation, but also for granting relief for income exempt from taxation. The inference at Point 11 of the Show Cause Notice looking down on the claim of Tax credit without paying tax is erroneous in law as the relevant question is “chargeability/liability to tax” and not “actual payment of tax”.

3.2.3 The question whether an income which is exempt is eligible to be classified as “chargeable/liable to tax” or not is no longer Res integraas the issue has been decided by no less than the Apex Court in the case of UOI and Others Vs. Azadi Bachao Andolan & Others 263 ITR 706 (SC). (Copy at Annexure-III). Interestingly in this case, the Apex Court was hearing an appeal by the Department against an order of the Delhi High Court which had upheld the plea by a bunch of petitioners that the Treaty benefits should be denied if the income tax has not been paid in one of the Contracting Countries (Mauritius) and quashed CBDT’s Clarificatory Circular No 789 dated 13.04.2000. After exhaustive arguments and analysis, the Apex Court upheld the plea of the Ld. Attorney General that merely because a source of income is exempt at a particular point of time, it cannot be construed that tax is not payable/liability from the charging section is not there. In fact the very need for giving exemption arises since there is a “charge” in the first place. Relevant paragraphs of the judgment are reproduced below:

“76. It is urged by the learned Attorney General and Shri Salve for the appellants that the phrase ‘liable to taxation’ is not the same as ‘pays tax’. The test of liability for taxation is not to be determined on the basis of an exemption granted in respect of any particular source of income, but by taking into consideration the totality of the provisions of the income-tax law that prevails in either of the Contracting States.1Merely because, at a given time, there may be an exemption from income-tax in respect of any particular head of income, it cannot be contended that the taxable entity is not liable to taxation. They urge that upon a proper construction of the provisions of Mauritian Income Tax Act it is clear that the FIIs incorporated under Mauritius laws are liable to taxation; therefore, they are ‘residents’ in Mauritius within the meaning of the DTAC.

OECD’s Glossary of Tax Terms defines “TAX SPARING CREDIT as- Term used to denote a special form of double taxation relief in tax treaties with developing countries. Where a country grants tax incentives to encourage foreign investment and that company is a resident of another country with which a tax treaty has been concluded, the other country may give a credit against its own tax for the tax which the company would have paid if the tax had not been "spared (i.e. given up)" under the provisions of the tax incentives.

The purpose of adopting this provision in the Double Taxation Agreements is to ensure that the tax incentives granted in a Country (say S) for Foreign Investors are not rendered ineffective in the hands of the Foreign Investor by Home Country (of the Foreign Investor) denying the credit for the taxes foregone but not actually paid in the Country S. The relevant paragraphs of the UN Model Tax Convention Commentary are reproduced below for ease of reference:

“The effectiveness of the tax incentive measures introduced by most developing countries thus depends on the interrelationship between the tax systems of the developing countries and those of the capital-exporting countries from which the investment originates. It is of primary importance to developing countries to ensure that the tax incentive measures shall not be made ineffective by taxation in the capital- exporting countries using the 309 Article 23 Commentary foreign tax credit system. This undesirable result is to some extent avoided in bilateral treaties through a “tax-sparing” credit, by which a developed country grants a credit not only for the tax paid but also for the tax spared by incentive legislation in the developing country......... While the exemption method of providing relief for double taxation eliminates the undesirable effects of the residence country’s taxes on the source country’s tax incentive scheme, many developed countries are unprepared to include this system in their treaties. Where the investor’s home country applies the principle of foreign tax credit, the most effective method of preserving the effect of the tax incentives and concessions extended by developing countries is a tax-sparing credit” 24

3.2.5 Article 25 of the Indo Oman DTAA which is at the crux of the issue is reproduced below:-

“ARTICLE 25 : Avoidance of double taxation –

2. Where a resident of India derives income which, in accordance with the provisions of this Agreement, may be taxed in the Sultanate of Oman, India shall allow as a deduction from the tax on the income of that resident an amount equal to the income-tax paid in the Sultanate of Oman, whether directly or by deduction. Such deduction shall not, however, exceed that part of the income-tax (as computed before the deduction is given) which is attributable to the income which may be taxed in the Sultanate of Oman. 3. ………... 4. The tax payable in a Contracting State mentioned in paragraph 2 and paragraph 3 of this Article shall be deemed to include the tax which would have been payable but for the tax incentives granted under the laws of the Contracting State and which are designed to promote economic development. 5. ………….……..” Before attempting to interpret the provisions of the DTAA, it will be useful to refer to the following observations of the Apex Court in Azadi Bachao Andolan (supra) on the principles to be kept in mind while interpreting a treaty: “Interpretation of Treaties 120. The principles adopted in interpretation of treaties are not the same as those in interpretation of statutory legislation. ................. …..The interpretation of a treaty imported into municipal law by indirect enactment was described by Lord Wilberforce as being ‘unconstrained by technical rules of English law, or by English legal precedent, but conducted on broad principles of general acceptation. This echoes the optimistic dictum of Lord Widgery CJ 25

that the words ‘are to be given their general meaning, general to lawyer and layman alike… the meaning of the diplomat rather than the lawyer."1

The significance of the above observations is to appreciate that the primary rationale of Article 25(4) is to extend the tax credit already given by Article 25(2) even to cases where the tax is not actually paid but would have been payable had it not been exempted under the tax laws of one of the Contracting States. Thus, Article 25(4) is a tax sparing provision consciously aimed at giving Tax credit even if actual tax is not paid in the Contracting State of Source of the Income. By this, it is ensured the tax exemption benefit granted by a Contracting Country is not made “ineffective” by taxation in the Country of Residence (COR) of the Foreign Investor under the Foreign Tax Credit System. The trade off/rationale for the COR for giving this credit of taxes “spared” is improving the trade/economic relations amongst the Contracting Countries since the ultimate tax cost in any Investment Project is reduced/eliminated in the hands of the Investor. 3.2.6 From the combined reading of Articles 25(2), 25(4) and Section 90(1)(a)(ii), it is clear that actual payment of taxes is not a sina qua non for the claim of the tax credit. However, the following two conditions still need to be satisfied for the claim of the Tax Credit :- A. The tax should have been “payable” and B. The tax is not actually paid on account of the tax incentive provisions aimed at promoting economic development. The satisfaction of both these conditions in the Society’s case is discussed below: A. Whether tax was “payable” by the Society’s PE in Oman? i. In the previous year relevant to A.Y 2010-11, the Omani Tax Law was governed by Royal Decree 47 of 1981. (Relevant Extracts at Annexure-IV). Some of the relevant provisions of this law are discussed below: Article 2(4): The term Company includes any permanent establishment in Oman which is supported by a foreign company Article 2(17): Tax means any tax payable under this law and includes penalty, interest ..... Article 2(19): Taxable Income means the total amount of Gross Income less any deductions allowed there from Article 4(Bis): The Secretariat General shall primarily be competent of a) Taking the procedures necessary for making the tax assessments and the exemption there from in the manner specified in the Law........... Article 8 (Charging Section):Subject to this law, tax shall be charged for each taxable year upon the taxable income of any Company which accrues or arises in Oman or is deemed by the Secretary General to so accrur or arise in respect of ........ any income from any other source.

Article 8 (bis) inserted by Royal Decree 68/00 effective from 2000 : The tax shall not apply to the Dividends received by the Company from the shares, portions or stock it owns in the capital of any other Company ii. A combined reading of the above provisions clearly show that the charge on the Income of the PE is governed by Article 8 read with Article 2(4) and 2(17). 27

However in the Year 2000, Article 8(bis) was added to exempt dividends received by the Company including the Society’s PE. If the amendment had not taken place, the dividend income accrued/earned in Oman would have been taxed in Oman since the Society’s PE is included in the definition of Company under Article 2(24). The very purpose of giving the exemption is to carve out an exception from the Charging Section. If there was no charge in the first place, there would have been no need to insert 8 (bis) to grant the exemption. The charge does not go away merely because exemption is granted at a particular point of time. iii. It is very significant to note that this issue has also been dealt at length in the Clarification dated 6th Aug, 2000 (Annexure-V) given by the Ministry of Finance, Secretariat General for Taxation, Sultanate of Oman, (prior to insertion of Article 8 (bis)) wherein it is clearly clarified at Point 2 that “Income including Dividends of a PE of any Foreign Enterprise is chargeable to tax and is charged to tax at rates mentioned in paragraph 6(ii) below”. Hence it is clear that tax was payable by the Society’s PE on the Dividends received but for the amendment made to Article 8 of the Omani Tax Law.” ………………………………. B. The following is relevant to understand the nature of the exemption granted by Article 8(bis): i. The Preamble to Royal decree 68 of 2000 (Annexure-VI) issued by the Sultanate of Oman (which inserted Article 8 (bis)) states that the amendments have been done “in exigencies of Public Good”. In law, the Preamble to a Statute is a well recognized Internal Tool of Interpretation of the Statute. In accordance with the exigencies of Public Good means a demand for the economic good of the Public. Public good corresponds to national needs and self interest of a country. In a fiscal statue, amendment for Public Good clearly implies amendment through tax incentives to foster economic development/job growth through inflow of Foreign Capital. Thus, from the preamble itself it is clear that the exemption to dividends is a tax incentive measure aimed at fostering economic development. There is no 28 other motive other than economic development which can be reasonably attributed to a tax incentive/ exemption measure. Hence, the requirement of Article 25(4) is fulfilled in the case of the Society. ii. The above conclusion is fortified beyond doubt by a Clarificatory Letter issued by the Secretariat General for Taxation, Ministry of Finance, Sultanate of Oman, dated 11th December, 2000 (Annexure-VII) issued in response to a letter written on behalf of the Indian Sponsors (IFFCO/KRIBHCO) by the Omani JV Partner M/s. Oman Oil Company (Annexure-VIII) seeking clarifications on the intent of Article 8(bis). The said letter clearly explains that: - Before the recent amendments, though the Companies engaged in activities considered essential for economic development were given tax exemption, tax was payable by recipients of Dividends from these Companies. - This implied that the investors had a tax cost in their hands resulting in negative impact on investments thus adversely affecting the objective of economic development - To obliterate the above cited negative effect, the exemption is now granted in the hands of recipients’ too “so that the Government of Oman would achieve its main objective of promoting economic development by attracting investments”

It is trite that the only authority competent to comment on the rationale of any tax incentive provision in a country’s tax law is the authorities/legislature/judiciary of that country alone. There is no scope for the other country’s tax authorities (India in the instant case) to second guess the objectives especially in the light of clear cut clarification given in the above cited letter. Such an attempt would clearly fall foul of the mandate of Article 25(4) entered consciously by the Governments of both the countries and has to be repelled. 3.2.8 Without prejudice to the above, it is submitted that though each assessment year is separate and distinct and principle of res judicata does not 29 apply to proceedings for subsequent or other years., decision on an issue or question though not binding should be followed and not ignored unless there is a change in law or facts to take a different view. Reliance is placed in this regard on the decision of the Hon’ble Supreme Court in Radha Soami Satsang versus Commissioner of Income Tax, [1992] 193 ITR 321 (SC), (followed by the Apex Court in CIT Vs. Excel Industries [2013] 358 ITR 295) which held that when a fundamental aspect pervading through different assessment years has been found as a fact in one way or the other, it would inappropriate to allow the position to be changed in a subsequent year particularly when the said finding has been accepted. The said principle is also based upon the rules of certainty and consistency that a decision taken after due application of mind should be followed consistently. On the facts in our case, neither the law (Domestic Law /Treaty) nor the facts have changed from the earlier years wherein the Revenue has allowed the claim of Tax Credit from AY 2006-07 to AY 2011-12. Hence, the settled position should be followed for the sake of consistency too.

In the light of the above it is prayed that the proposed Revisionary proceedings are not sustainable in law or facts in view of the following: - On the legal issue of Revisionary jurisdiction u/s 263, in view of the specific enquiry by the A.O and detailed reply on the issue covering all the aspects of Article 25 (4) - On facts, based on the clear confirmation on chargeability of Omani Tax both before the amendment to Article 8(bis) and after the amendment to Article 8 confirming the objective of the change in law by the Omani Secretariat General of Taxation.

Hence, the proposed revisionary proceedings may kindly be dropped.” (emphasis supplied)

8.4 The learned Pr. CIT has considered the submissions made by the appellant-society vide letter dated 11th January, 2016, relevant parts of which have been reproduced above. However, he communicated to the appellant-society vide further letter dated 10th March, 2016 that he was not satisfied with the reply given. Vide para-6 of this letter the learned Pr. CIT conveyed that no sanctity can be attached to the letters issued by the Secretariat General of Taxation of Oman regarding the purpose for which exemption was granted to dividend income. He opined that the appellant-society is trying to give a shape of law to the letters issued by the Administrative officer. He further stated that there should be some provision in the Omani Tax decree authorizing an officer to issue clarifications about the tax laws. The learned Pr. CIT has mentioned that in the relevant section 8(Bis) of the Omani Tax Law, there is no reference that exemption to dividend income was designed for economic development. The learned Pr. CIT further conveyed that mere investment in a company to earn dividend income does not result into economic development. The learned Pr. CIT also referred to the order dated 9th March, 2016 passed by the Hon'ble ITAT Delhi Bench in the case of KRIBHCO. In this order the Hon'ble Tribunal quashed the order passed by the learned Pr. CIT u/s.263 in similar facts and circumstances. The learned Pr. CIT observed that the Department may not accept the order of the ITAT. At paras 15 & 16 of the said letter dated 10th March, 2016 the learned Pr. CIT further observed that the Article-6(3) of the Omani Tax decree relied upon by the appellant-society cannot be construed to grant any power to the Secretary General of Taxation of Sultanate of Oman to issue any clarification regarding interpretation of law. The learned Pr. CIT at para-13 of his order has mentioned that in response to the aforesaid letter the appellant-society further filed written submissions vide letter dated 22nd March, 2016. The learned Pr. CIT has briefly referred to the contentions of this letter. It would be appropriate to reproduce below the relevant part of the appellant-society’s letter dated 22nd March, 2016 for the kind consideration and appreciation of this Hon'ble Tribunal:- “A1. As your Honour is already aware, the Income Tax Appellate Tribunal has pronounced its judgment in the case of M/s Krishak Bharti Cooperative Ltd.(“KRIBHCO” for short) Vs. ACIT, Circle 30(1), New Delhi in & 6786/Del/2015 vide its Order dated 9th March,2016. As rightly mentioned in your SCN, each case law turns on its own facts. The ITAT has quashed the Revisionary Order both on the grounds of jurisdiction, consistency and on merits too. The facts in our case are on all fours covered by the said decision. Similar to M/s KRIBHCO’s case, 31 in our case too, as submitted in our reply dated 11th Jan, 2016 : � Detailed Enquiry letters were issued by the Assessing Officer from AY 2006-07 to the AY 2011-12 (including AY 2010-11, being the year under proposed Revision). � After discussion of Article 25(4) of the DTAA, Article 8 (bis) of the Omani Law and the Assessment Orders in Oman which highlighted the objective of the Dividend Exemption implying proper application of mind, the Tax Credit was allowed to the Society in the Scrutiny Assessment Orders. � View adopted by the A.O was one of the plausible and possible view (Kindly Refer Para 15 of the ITAT Order) It may kindly be noted that the Hon’ble Tribunal has also recorded an unambiguous finding that the order passed u/s. 263 is also bad in law on the following two grounds:- 1. There was full application of mind on the part of the A.O. at the time of original assessment and he has adopted a view which is a possible view and therefore, having regard to the established position of law, the PCIT cannot invoke his jurisdiction u/s. 263 merely to substitute his view in place of the view adopted by the A.O..

highlighting the binding nature of the Jurisdictional Tribunal’s Orders till the same are stayed/set aside/over-ruled by higher Courts: a. MP High Court- Agarwal Warehousing and Leasing Ltd. V. CIT (257 ITR 235) relying on the Supreme Court’s Order in UOI Vs. Kamlakashi Finance Corporation Ltd. “The Tribunal is created under Section 252 of the Income-tax Act, consisting of as many judicial and accountant members as may be appointed by the Central Government. One such judicial member of the Tribunal is normally appointed as the President thereof. Any assessee aggrieved by the orders passed by the authorities as enumerated under clauses (a) to (c) of sub-section (1) of section 253 may appeal to the Tribunal. The Tribunal has power to pass such orders on such an appeal as it thinks fit Sub-section (4) of section 254 attaches finality to the orders of the Tribunal subject to the provisions of section 256 (or section 260A). Needless to say the orders passed by the Tribunal are binding on all the Revenue authorities functioning under the jurisdiction of the Tribunal. Dealing with this very aspect of the matter, the Supreme Court in the case of Union of India v. Kamlakshi Finance Corporation Ltd., AIR 1992 SC 711; [1991] 55 ELT 433 (SC) emphasized (page 712 of AIR 1992 SC) :

"It cannot be too vehemently emphasized that it is of utmost importance that, in disposing of the quasi- judicial issues before them revenue officers are bound by the decisions of the appellate authorities. The order of the Appellate Collector is binding on the Assistant Collectors working within his jurisdiction and the order of the Tribunal is binding upon the Assistant Collectors and the Appellate Collectors who function under the jurisdiction of the Tribunal. The principles of judicial discipline require that the orders of the higher appellate authorities should be followed unreservedly by the subordinate authorities. The mere fact that the order of the appellate authority is not 'acceptable' to the Department—in itself an objectionable phrase—and is the subject-matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent court. If this healthy rule is not followed, the result will only be undue harassment to assessees and chaos in administration of tax laws." 33

Obviously, the Commissioner of Income-tax (Appeals) not only committed judicial impropriety but also erred in law in refusing to follow the order of the Appellate Tribunal. Even where he may have some reservations about the correctness of the decision of the Tribunal, he had to follow the order…” b. Bombay High Court- Bank of Baroda- 256 ITR 385 [2001] “At this juncture, we cannot resist from observing that the judgment delivered by the Tribunal was very much binding on the Assessing Officer. The Assessing Officer was bound to follow the judgments in its true letter and spirit. It was necessary for the judicial unity and discipline that all the authorities below the Tribunal must accept as binding the judgment of the Tribunal. The Assessing Officer being inferior officer vis-a-vis the Tribunal, was bound by the judgment of the Tribunal and the Assessing Officer should not have tried to distinguish the same on untenable grounds. In this behalf, it will not be out of place to mention that ‘in the hierarchical system of Courts’ which exists in our country, ‘it is necessary for each lower tier’ including the High Court, ‘to accept loyally the decisions of the higher tiers’. ‘It is inevitable in hierarchical system of Courts that there are decisions of the supreme Appellate Tribunals which do not attract the unanimous approval of all members of the judiciary. But the judicial system only works if someone is allowed to have the last word, and that last word once spoken is loyally accepted’. The better wisdom of the Court below must yield to the higher wisdom of the Court above as held by the Supreme Court in the matter of CCE v. Dunlop India Ltd. AIR 1985 SC 330.”

A2. Point No. 14 & 15- Sanctity of Letter not considered by ITAT At Point 14 of your office’s letter dated 11th March, 2016 it is stated that ITAT in its Order has not considered the sanctity of letter issued by the Secretary General of Taxation to a “single company”. It is humbly submitted that at Page 64 of the Order, Clause 6(3) of the Omani Law stating that “any document issued by the Secretary General shall be considered an Official Document if it carries its name” has been duly reproduced. At Para 13 on Page 73, the order of the Ld. ITAT states that “we have considered the rival 34 submissions and perused the relevant records available with us”. The “Records” include the letters issued by the Secretary General of Taxation (SGT), Ministry of Finance in August and December, 2000. The “Submissions” include the reference to Article 6(3) of the Omani Tax Law. Further at Para 19, the ITAT states that interpretation of Omani Tax Laws can be clarified only by the highest tax authorities of Oman and such interpretation given by them must be adopted in India.

Hence, from the above facts, since Article 6(3) was very much before the ITAT, it is clear that the ITAT has considered the letter/document of H.E the SGT in the context of Article 6(3) and has concluded the letters to be a sufficient aid to interpret the intent of the Dividend Exemption. One may or may not agree with the conclusion of the ITAT but it would be wholly fallacious to presume that the ITAT has not considered the validity/legality of the letter. In this regard, it may be useful to refer to the following observations of ITAT-Hyderabad in the case of M/s. Liquors India Ltd. in ITA Nos. 352/Hyd/2013:

“Further, we make it clear that neither the CIT/CIT(A) nor the Tribunal cannot scrutinise the earlier order of the Tribunal, sentence by sentence merely to find out whether all the facts have been set out in detail by the Tribunal or whether some incidental fact which appears on the record has not been noticed by the Tribunal in its judgment. If the authority, on a fair reading of the judgment of the Tribunal, finds that it has taken into account all relevant material and has not taken into account any irrelevant material in basing its conclusion, the decision of the Tribunal is not liable to be interfered with, unless, of course, the conclusions arrived at by the Tribunal are perverse. It is not necessary for the Tribunal in its judgment specifically or any express words that it has taken into account the cumulative effect of the circumstances or has considered the totality of the facts of the case, as if it is a magic formula: if the judgment of the Tribunal shows that it has, in fact, done so, there is no reason to interfere with the decision of the Tribunal. The CIT is not justified in finding a hole in the order of the Tribunal so as to disallow the claim of the 35 assessee towards Trade Scheme Expenditure. In our opinion, the comments of the CIT regarding the interpretation taken by the Tribunal on earlier occasion deserves to be repudiated as a fact of gross judicial indiscipline.” Hence, since at Para 17 of the Order, the Hon’ble ITAT has also decided the issue on merits, it is prayed that the Revisionary Proceedings may be dropped following the Jurisdictional Tribunal’s Order on the merits of the case too. A3. Points 6 to 9 - Sanctity of Letter issued by H.E SGT, Ministry of Finance, Oman Though as discussed above, the Hon’ble ITAT in its wisdom has already decided the issue of validity of the letter issued by the SGT, Ministry of Finance, Oman, in response to the doubts in your Office’s letter dated 11th March, 2016, we make the following additional submissions in continuation to our submissions dated 19th and 11th January, 2016 for your honour’s kind perusal: i. Each Country is sovereign in deciding the Branches of its Government, Structure of its laws, Conventions, extent of Delegated Legislation etc. In India, as a matter of convention, the intent of changes in Tax law are explained in the relevant year’s Memorandum explaining provisions in the Finance Bill. However, even in India, there is no constitutional/statutory requirement for intent of each and every change to be explained in the Memorandum. Each Country’s Conventions differ. Since there is no such convention in Oman (surely, for no fault of the assessee), a specific clarification was sought from the Ministry of Finance in Oman in the year 2000 which was replied by HE the Secretary General for Taxation, Ministry of Finance, Oman, vide letters dated 6th August, 2000 and 11th December, 2000. In the absence of any cogent material, there was and is absolutely no basis for us or any Indian Authority to doubt the Authority of the Secretary General for Taxation, Ministry of Finance, Oman, to issue such a letter. Can it be reasonably expected that as an Investor, we will first ask the Oman Government to amend its laws authorizing the SGT to specifically issue clarification/letter to us before we rely on such a clarification? If that be so, going a step further, an Investor may even have to wait till the other country’s 36

Judiciary also affirms the validity of such a provision before it takes the Investment decision? Is this a reasonable/fair expectation? ii. Your kind attention is drawn to Article 3 of the Omani Tax Law (submitted as Annexure-IV in the Reply dated 11th Jan., 2016) which states that the “The Secretary General shall be responsible for the execution of this law….”. “Execution” in itself has wide connotations and the power to issue clarifications can be reasonably construed to be included in this Power/Responsibility itself as in the absence of suitable clarifications, if the intent of some provisions remain uncertain and the Investor is unable to calculate the impact of such Incentives on the Post tax returns on its investments, the Incentive Provisions would not achieve their purpose thus hindering the effective execution of the law. Your honour would appreciate that Execution of Tax Law is not just collection of Revenues but also ensuring that the legislative purpose behind the Incentive/Exemption Provisions of encouraging Investment is clarified to all prospective Investors. Hence, it is unfair to treat the letter of HS SGT dated 11th Dec., 2000 as “unauthorized in law”. iii. Further, there is a Presumption of Regularity expressed by the maxim of law "omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium” implying that all judicial and official acts are presumed to be having been rightly and regularly done. Neither motive can be presumed nor bad faith nor abuse of power. This maxim is codified in Section 114(e) of the Indian Evidence Act, 1872 too. Hence, the regularity/legal validity of the official letters should be respected. iv. In the absence of any explicit limitation on the authority of the SGT in the Omani Tax Law and in view of the powers of the HE the SGT in the overall scheme of the Omani Tax Law, it is unjust and unfair to call it “mere opinion of an officer”. Such an interpretation would imply that no Investor would believe the authorities of any country and the Tax Sparing Credit provision enshrined in Article 25(4) of the Indo Oman DTAA r.w.s 90(1)(a)(ii) would be rendered otiose. A.4. Point Nos. 10 to 12- Non mentioning of “Economic Development” in Article 8 (bis) 37 i. It is stated in your Office’s letter that the intent of Economic Development is not explicitly written in Article 8(bis) and the assessee is trying to insert economic development in the same. It is humbly submitted that there is no such attempt by us. The intent of law may or may not be mentioned in a legal provision depending upon the individual practices/conventions of each country. Even in India, we find so many Tax Incentives aimed at Economic Development contained in Section 10 and Chapter VIA without explicitly mentioning the aim/intent of them in the Section itself. As stated earlier, we have to gather the same from the internal and external aids to construction like the Explanatory Memorandum, the Object Clause of the Finance Bill, the Minister’s Speech etc. Similarly, just because Article 8(bis) does not contain the reference to Economic Development, it cannot be presumed that the said exemption is not designed for economic development. ii. Further, it is a basic principle of Construction of Statutes that the Statute has to be read as a whole in its Context. “Context” includes the previous State of Law, the Preamble, object sought to be achieved, mischief sought to be remedied. (UOI Vs. Elphinstone Spinning and Weaving Co. Ltd. AIR 2001 SC 724-2001- Constitution Bench). Prior to insertion of Article 8(bis) (Previous State of law), the Investors in Oman suffered a Tax Cost on the returns from their Investment if the Investee Companies Income was exempt from Tax. The SGT in its letter dated 6th August, 2000 and 11th Dec., 2000 (Annexure V and VII to our reply dated 11thJan., 2016) reiterates this factual position and in the letter of the 11th Dec., 2000 goes on to say that : “We refer to your letter dated 2 December, 2000 and our previous letter dated 6 August, 2000 on the above subject. Under Article 8 of the Company Income Tax Law of Oman, dividend forms part of the gross income chargeable to tax. The tax law of Oman provides income tax exemption to companies undertaking certain identified economic activities considered essential for the country’s economic development with a view to encouraging investments in such sectors. Before the recent amendments to the Profit Tax Law on Commercial and Industrial Establishments, Article 5 of 38 this law provided for exemption of dividend income in the hands of the recipients if such dividends were received out of the profits on which Omani income tax was paid by distributing companies. It meant that Omani income tax was payable by the recipients on any dividend income received out of the exempt profits from tax exempt companies. As a result, investors in tax exempt companies that undertake those activities considered essential for the country’s economic development suffered a tax cost on their return on investments. the tax treatment under the above mentioned Article 5 had the negative impact on investments in tax exempt project.

The Company Income Tax Law of 1981 was, therefore, recently amended by Royal Decree No. 68/2000 by the insertion of a new Article 8(bis), which is effective as from the tax year 2000.

As per the newly introduced Article 8(bis) of the Company Income Tax Law, dividend distributed by all companies, including the tax exempt companies would be exempt from payment of income tax in the hands of the recipients. In this manner, the Government of Oman would achieve its main objective of promoting economic development within Oman by attracting investments. We presume from our recent discussions with you that the Indian investors in the above Project would be setting up Permanent Establishment in Oman and that their equity investments in the Project would be effectively connected with such Permanent Establishments.

On the above presumption, we confirm that tax would be payable on dividend income earned by the Permanent Establishments of the Indian Investors, as it would form part of their gross income under Article 8, if not for the tax exemption provided under Article 8(bis).

As the introduction of Article 8(bis) is to promote economic development in Oman, the Indian Investors should be able to obtain relief in India under Article 25(4) of the Agreement for Avoidance of Double Taxation in India.

All other matters covered in our letter No. FT/13/92/, dated 6 August, 2000 remain unchanged.” 39

It is an accepted position of interpretation that if there is some doubt about the interpretation of a particular provision of Law, the Competent Authority to clarify that provision is only the Government of that particular country. The Income Tax Department of India has no locus standi in this matter. Also, the Preamble to Royal decree 68 of 2000 (submitted as Annexure-VI to our Reply dated 11.01.2016) issued by the Sultanate of Oman (which inserted Article 8 (bis)) states that the amendments have been done “in exigencies of Public Good”. In law, the Preamble to a Statute is a well-recognized Internal Aid to Construction/Interpretation of the Statute. In accordance with the exigencies of Public Good means a demand for the economic good of the Public. Public good corresponds to national needs and self-interest of a country. In a fiscal statue, amendment for Public Good clearly implies amendment through tax incentives to foster economic development/job growth through inflow of Foreign Capital. Thus, from the preamble itself it is clear that the exemption to dividends is a tax incentive measure aimed at fostering economic development. There is no other motive other than economic development which can be reasonably attributed to a tax incentive/exemption measure. Thus, when read in its context, it is clear that the exemption to Dividends was given to incentivize Investors to invest more. The link between Investment and Economic Development is too obvious in Economics to be ignored in interpreting Article 8(bis) more so when the same is specifically acknowledged by the Ministry of Finance of the Country(Oman) itself. A5. Point No. 13-General Exemption’s link with Economic Development i. It is stated in your office letter that “It is not necessary that any Shareholder who earns dividend would be promoting the economic development. It is mere Investment in a particular Company….”. We humbly submit that we agree that the act of receiving Dividends cannot promote Economic Development but we cannot lose sight of the fact that Receipt of Dividend is a consequence of Investment. Economic Development takes place qua Investment and not qua Dividend Receipts. It is the act of Investment which promotes Economic Development directly by means of 40 generation of employment and indirectly by its effects on other sectors of the economy having linkages with the Industry. For Instance, due to the OMIFCO Fertiliser Project coming in Oman, not only people employed in the Company but also its Vendors, Contractors etc. would earn income which would obviously help in development of Oman economy. From the Investor point of view, any prudent Investor comparing Investment Options before making a final decision will obviously compare the “Post Tax Returns” on its Investments among various competing Countries/Investment Options. The Post Tax Returns would necessarily take into account the Tax on Projected Dividends in Source Country and Home Country based on the respective Domestic Tax Laws and the provisions of the Double Tax Avoidance Agreements. The relevance of DTAA’s as a means of encouraging cross border trade and Investment is codified in S. 90(1)(a)(ii) of our Income Tax Act too. It is obvious that given the same amount of Profits earned by a Investee Company and Dividend Pay Out Ratios, the Post Tax Returns for the Investor would be higher in a country which grants the Dividend Exemption (like Article 8 (bis ) of Omani Tax Law) than a country which does not grant an exemption. Hence, the nexus between the Dividend Exemption and Economic Development is luminescent and cannot be brushed aside. Even if for a moment the explicit letters of HE the SGT and the Assessment Orders in Oman are ignored, the only reasonable interpretation as to the intent of the Dividend Exemption can be as an Incentive aimed as an Economic Development measure only. ii. It is not true that General exemption cannot be for a specific purpose. There is no legal/factual basis for such an observation. In tax laws, each and every Incentive Provision has a purpose. “Tax Incentives” include Exemptions, Deductions, Tax Credits etc. The words “Economic Development” have a very wide connotation and cannot be given a restricted meaning to confine it to only some Sectors of the Economy. When the intent is to incentivize Foreign Investment in all the Sectors of the Economy, a general Dividend Exemption can be given as a Tax Incentive across all Sectors. Such an exemption would not lose its attribute of encouraging Economic Development just because it applies across all Sectors. If the intention in the DTAA was to restrict its meaning to certain specified Sectors, suitable qualifiers would have 41 been inserted before the words “Economic Development” in Article 25(4). In conclusion in the light of the above submissions and the decision of the Jurisdictional ITAT in the case of M/s. KRIBHCO (supra) both on merits and non- maintainability of the proposed Revision u/s. 263, sufficient enquiry having been done at the assessment stage, we once again pray for dropping the proceedings u/s. 263 on the Issue.” (emphasis supplied)

8.5 It may kindly be appreciated that the appellant-society not only strongly relied on the decision rendered by a co-ordinate Bench of the Hon'ble Tribunal on the same issue but also has explained in great detail as to how the Secretary General of Taxation, Oman is fully competent and authorized to clarify the purpose of any amendment made in the Omani Tax Law and also demonstrated the inextricable link between Investment and Economic Development on the one hand and between the Post tax Returns for an Investor and Investment on the other hand. The learned Pr. CIT has merely assumed that the relevant letters issued by the Secretary General of Taxation can be considered as letters/opinion issued by an officer which have no sanctity in the eyes of law. It is respectfully submitted that the Secretary General of Taxation, Oman is acting under the authority of the sovereign State of Sultanate of Oman and he is fully competent to issue a clarification whenever there is any doubt raised by the affected company/Foreign Investors regarding the purpose of any amendment brought about in the Omani Tax Law. The learned Pr. CIT has considered the various submissions made on behalf of the appellant-society and has recorded his findings on the relevant issue at paras 20 to 50 of his order. First of all, at para-21 he has made the following sweeping remark.

“21. In my opinion, the A O did not make any verification / enquiries as regards the legal value of letters issued by the Secretary General and also did not make any enquiry as regards the designed economic development. There was lack of inquiry and non-application of mind.”

From the above, it may kindly be seen that the learned Pr. CIT has proposed to treat the assessment order as erroneous and prejudicial on the ground that the Assessing Officer did not make any verification/inquiry regarding the legal value of the letters issued by the Secretary General of Taxation. In this regard, it is submitted that the Assessing Officer has considered this issue on merits in great detail in a scrutiny assessment order passed by him and he has further followed consistent 42 view taken by the Department starting from the Assessment Year 2006-07 onwards in scrutiny assessment completed. The Assessing Officer has further taken note of the assessments made in the case of the P.E. of the appellant-company wherein also it is unambiguously recorded that exemption has been granted to dividend income for the purpose of economic development. Therefore, no fault can be found in the approach of the Assessing Officer. At para-23 the learned Pr. CIT has observed that the issue as to whether exemption has been granted for the purpose of economic development, has to be decided not by one country but by both the countries as double taxation agreement is entered into by two countries. It is humbly submitted that this observation made by the learned Pr. CIT is totally fallacious. If there is some debate about the interpretation of any provision of the DTAA only then the two countries would come into picture. However, if the question is confined only to the interpretation of a particular provision of the tax law of one of the countries, it is only that specific country which can issue any clarification regarding the interpretation. The other country obviously does not have any locus standi in this matter. For example, if there is any doubt regarding the interpretation of any provisions of the Income-tax Act, only the Government of India through its agency can clarify such provision. Similarly, if there is some debate regarding the interpretation of any provision or purpose which is confined to the Omani Tax Law, only the Sultanate of Oman through its agency can issue clarification. There is no question of the two countries sitting together on this particular issue.

8.6 At para-24 the learned Pr. CIT has referred to the Hon'ble Supreme Court decision in the case of Union of India and Another vs. Azadi Bachao Andolan, 263 ITR 706 and at para- 25, the learned Pr. CIT has also reproduced the following part of the Hon'ble Supreme Court’s order:-

“The niceties of the OECD model of tax treaties or the report of the Joint Parliamentary Committee on the Stock Market Scam and Matters Relating thereto, on which considerable time was spent by Mr. Jha, who appeared in person, need not detain us for too long, though we shall advert to them later. This court is not concerned with the manner in which tax treaties are negotiated or enunciated; nor is it concerned with the wisdom of any particular treaty. Whether the Indo- Mauritius DTAC ought to have been enunciated in the present form, or in any other particular form, is none of our concern. Whether section 90 ought to have been placed on the statute book, is also not our concern. Section 90, which delegates powers to the 43

Central Government, has not been challenged before us, and, therefore, we must proceed on the footing that the section is constitutionally valid. The challenge being only to the exercise of the power emanating from the section, we are of the view that section 90 enables the Central Government to enter into a DTAC with the foreign Government. When the requisite notification has been issued thereunder, the provisions of sub-section (2) of section 90 spring into operation and an assessee who is covered by the provisions of the DTAC is entitled to seek benefits thereunder, even if the provisions of the DTAC are inconsistent with the provisions of the Income-tax Act, 1961.”

We are at a loss to understand as to how the aforesaid observation of the Hon’ble Supreme Court supports the view taken by the learned Pr. CIT. As a matter of fact these observations are in assessee’s favour. At para-27 the learned Pr. CIT has further observed that at para-4 of the letter dated 6th August, 2000 it is mentioned that exemption was granted initially for a period of 5 years and this period may be extended for a further period of five years. We are again at loss to understand what is the relevance of these remarks of the learned Pr. CIT because the exemption continues and has been allowed in respect of the assessment year under appeal and, therefore, the entire controversy has arisen. Further, the insinuation at para 27 of the impugned order that “a response to letter cannot become a law” is uncalled for and not apposite as the law is already laid down in the Royal decrees of the Omani Government, the letter issued by H.E the Secretary General does not override it is only a clarification on the intent of law to allay any doubts in the minds of the Foreign Investors. There is no requirement in law for a clarification sought by an Investor to be made public.

8.7 At para 28, the learned Pr. CIT has attempted to cast a doubt on the intent of the Exemption on the ground that the Royal Decree ought to have mentioned the exact words “designed for economic development” in the Decree itself and in its absence, the assessee cannot presume the same as designed for economic development. It is humbly submitted that with due respect, this is unjustified and is in ignorance of the legislative process. There is no Constitutional/legal requirement in the Sultanate of Oman Oman (or for that matter even India) for the intent of the law to be mentioned in the law itself. The intent has to be gathered by the Courts as part of the interpretation/construction process having regard to Context, history of the law, mischief sought to be 44 remedied and various internal/external aids to Construction of statutes. The mere fact that the intent of the change in law was not mentioned in the Royal Decree cannot be held against the appellant.

8.8 At para-30, the learned Pr. CIT has again repeated that the letter issued by the Secretary General of Taxation is merely an opinion of an officer of Oman which cannot be accepted. The learned Pr. CIT has refused to accept detailed submissions made before him that the Secretary General of Taxation, Oman is fully competent and authorized to issue any clarification regarding the purpose of any provision of Omani Tax Law.

8.9 At para- 33, the learned Pr. CIT has concluded that there is no article in the Omani Tax law which empowers the SGT for interpreting a particular article. It is submitted that this is a complete misreading of the Omani Tax Law especially Article 3 of Royal Decree 47 which specifically states that the “The Secretary General shall be responsible for the execution of this law….”. “Execution” in itself has wide connotations and the power to issue clarifications can be reasonably construed to be included in this Power/Responsibility itself as in the absence of suitable clarifications, if the intent of some provisions remain uncertain and the Investor is unable to calculate the impact of such Incentives on the Post tax returns on its investments, the Incentive Provisions would not achieve their purpose thus hindering the effective execution of the law. Your honour would appreciate that Execution of Tax Law is not just collection of Revenues but also ensuring that the legislative purpose behind the Incentive/Exemption Provisions of encouraging Investment is clarified to all prospective Investors. Hence, in the absence it is unfair and disingenuous to treat the letter of HS SGT dated 11th Dec., 2000 as “unauthorized in law”.

8.10 At para-34 the learned Pr. CIT has relied on the Hon'ble Supreme Court decision in the case of Smt. Tarulata Shyam vs. CIT, 108 ITR 345. The learned Pr. CIT has relied on the following observations of the Hon'ble Supreme Court in the above judgement:-

It is urged that the principle in the last limb of sub- section (1) of section 108 of the Commonwealth Act should also be read into the Indian statute. It is maintained that the omission of such words from sections 2(6A)(e) and 12(1B) does not show that the intendment of the Indian legislature was different. According to the counsel what 45 is explicit in section 108(1) of the Commonwealth Act, is implicit in sections 2(6A)(e) and12(1B) and the general scheme of the Act which requires that the assessment is to be made on the basis of total income of the whole previous year. Such a view, concludes Mr. Sharma, would also be in consonance with reason and justice.

We have given anxious thought to the persuasive arguments of Mr. Sharma. His arguments, if accepted, will certainly soften the rigour of this extremely drastic provision and bring it more in conformity with logic and equity. But the language of sections 2(6A)(e) and 12(1B) is clear and unambiguous. There is no scope for importing into the statute words which are not there. Such importation would be, not to construe, but to amend the statute. Even if there be a casus omissus, the defect can be remedied only by legislation and not by judicial interpretation.

To us, there appears no justification to depart from the normal rule of construction according to which the intention of the legislature is primarily to be gathered from the words used in the statute. It will be well to recall the words of Rowlatt J. in Cape Brandy Syndicate v. Inland Revenue Commissioners [1921] 1 KB 64 (KB) at page 71, that : " .. ...... in a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax.There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used."

Once it is shown that the case of the assessee comes within the letter of the law, he must be taxed, however great the hardship may appear to the judicial mind to be.” (emphasis supplied)

We are again at a loss to understand the relevance of this case for the purpose of deciding as to whether the Secretary General of Taxation, Oman is competent to issue a clarification or not. There can be no quarrel about the principle of jurisprudence laid down by the Hon'ble Supreme Court in the above case but how it supports the view adopted by the learned Pr. CIT is not clear.

8.11 At Para 36, the learned Pr. CIT has averred that “what the words “designed for Economic Development” are explicit there is no 46 room for something implicit”. With due respect, we are at a loss to understand what is implicit when the Clarification issued by HE the SGT is amply clear and explicit that the amendment to exempt Dividends in Oman’s Domestic Law was done with the specific objective of reducing the tax cost for the Investors so that they are encouraged to Invest resulting in furtherance of the aim of economic development of Oman.

Further, even if for a moment the clarification issued by HE the SGT is ignored, the scope of “Economic Development” as used in Article 25(4) is so wide that any fiscal incentive aimed at Investment promotion directly through lesser taxes/exemption on Dividends can have no objective other than Economic Development.

Some of the dictionary meanings are reproduced below which amply clarify that Economic Development covers Job and Industrial Growth which is a direct result of increase in Investment on account of Tax Incentives like Dividend Exemption (If a term is not defined in the statute, resort to Dictionary is a judicially approved aid to Construction) : a. The scope of Economic Development includes the process and policies by which a nation improves the economic, political, and social well-being of its people. (https://en.wikipedia.org/wiki/Economic_ development) b. Economic development usually refers to the adoption of new technologies, transition from agriculture-based to industry- based economy, and general improvement in living standards. (http://www.businessdictionary.com/definition/economic- development.html ) c. Economic Development refers to the increase in the standard of living in a nation's population with sustained growth from a simple, low-income economy to a modern, high-income economy. Economic development is enhanced when the local quality of life improves. Economic development can be extensive or intensive. It is extensive when there is increase of overall wealth and intensive when there is increase of per capita wealth. (http://definitions.uslegal.com/e/economic- development%20/) When the intent is to incentivize Foreign Investment in all the Sectors of the Economy, a general Dividend Exemption can be given as a Tax Incentive across all Sectors. Such an exemption would not lose its attribute of encouraging 47

Economic Development just because it applies across all Sectors. If the intention in the DTAA was to restrict its meaning to certain specified Sectors, suitable qualifiers would have been inserted before the words “Economic Development” in Article 25(4).

8.9 At para-38 the learned Pr. CIT has again referred to the Hon'ble Delhi ITAT decision in the case of KRIBCHO and he has assumed that probably the Hon'ble ITAT has “misinterpreted” the letter dated 11th December, 2000 issued by the Secretary General of Taxation to be issued by the Sultanate of Oman. He has again repeated that the letter only contains an opinion of the Secretary General. It is respectfully submitted that the letters referred to above have been officially issued by the Secretary General of Taxation, Oman on the letterheads of the “Ministry of Finance, Sultanate of Oman”. Obviously, the sovereign head of the State i.e. the Sultan of Oman is not supposed to put his personal signature to such letters of clarification. The Secretary General of Taxation, Oman is the highest authority appointed for execution and for issuing various notifications, forms and documents and he draws authority from the sovereign State of the Sultanate of Oman. It is most humbly and without any disrespect submitted that the learned Pr. CIT is not supposed to assume that a higher appellate authority has misinterpreted the letter issued by the Secretary General of Oman.

8.10 Again at para-40 of the order the learned Pr. CIT has repeated that the Hon'ble Tribunal perhaps presumed that the letter was issued by the Sultanate of Oman and that the Hon'ble Tribunal did not consider that the interpretation has to be with reference to the words used in the Act/DTAA. The learned Pr. CIT has even suggested that the Department may file a Miscellaneous Application before the Hon'ble ITAT pointing out that the said letters are just opinion from the officer of the Department of Oman which is a mistake apparent from record in law as well as on facts. He has further observed that the Hon'ble Tribunal did not consider that any interpretation has to be between two Governments under the DTAA and not by officer of Oman. It is reiterated that the learned Pr. CIT has entirely proceeded on the basis of an incorrect impression or assumption. The specific issue pertained to clarification of the purpose of one of the provisions of the Omani Tax Law and not the provisions of the DTAA. Therefore, the Government of India is obviously functus officio and has no locus standi in this matter. The Hon'ble Tribunal Delhi Bench has decided this issue after considering the entire material and facts which formed part of the record in the case of KRIBHCO. It is true that the 48

Department would be within its right to file or not to file any appeal against the aforesaid order of the Hon'ble Tribunal but this does not detract from the merits of the order passed by the Hon'ble Tribunal which must be accepted by the lower authorities till such order is reversed or stayed by a superior appellate forum.

8.11 At para-41 of the order the learned Pr. CIT has set aside the assessment order on this issue and has restored the matter to the file of the Assessing Officer with the following directions:-

“The A O would refer the matter to the concerned authorities who are responsible for entering into Double Taxation Agreement. The A O, through proper channel, would write a letter to the officers of the Department perhaps FTD who may request the Omani Government as regards the interpretation of article 25(4) of TDAA with particular emphasis on the word designed for economic development. The A O would narrate all the facts and also send a copy of the order u/s.263 passed by me wherein I have made certain observations as regards the interpretation. It is quite possible that both the Governments i.e. India and Oman may reach at a conclusion that may be in favour of Revenue or in favour of the assessee. Pending any communication from the concerned authorities, the view may be that the assessee is not entitled for tax credit. The process should be started in the month of April itself so that necessary communication could come in time as the assessment has to be framed u/s.143(3) / 263 within the time limited.”

It is respectfully submitted that the learned Pr. CIT has exceeded his powers u/s.263 of the I.T. Act while giving the aforesaid directions to the Assessing Officer. He has directed the Assessing Officer to address a letter to the concerned Department perhaps F.T.D. who may request the Omani Government regarding the interpretation of Article-25(4) of DTAA. The Assessing Officer has also been directed to send a copy of the learned Pr. CIT’s order passed u/s.263. He has further observed that it is quite possible that both the Governments i.e. India and Oman may reach at a conclusion that may be in favour of Revenue or in favour of assessee. He has further observed that pending any communication from the concerned authority the view should be adopted that the assessee is not entitled to tax credit. The aforesaid directions are full of doubts and suspicions and there is no clarity with regard to the reassessment to be 49 completed by the Assessing Officer. As mentioned above, the question of interpretation of section 25 of DTAA is not at all involved. There is no dispute regarding the interpretation of the aforesaid Article-25(4) of DTAA. The only dispute is regarding the purpose of Article-8(Bis) of the Omani Tax Law and for such interpretation as already explained above, the Government of India or FTD (Foreign Tax Division) of CBDT has no role to play. It is respectfully submitted that the learned Pr. CIT has invoked a jurisdiction u/s.263 with regard to this particular issue merely on assumptions, suspicion and surmises and such a view is not sustainable in law.

Further, the very fact that the Pr CIT considers that confirmation of FTD is required to conclude on the issue implies that as on the date of passing of the Order , the Revisionary Authority is unsure as to the basis on which the the assessment can be held as erroneous. This is clearly not permissible within the four corners of S.263 as interpreted by various Courts including jurisdictional Delhi High Court in the case of Globus Infocom Vs CIT (2014-369 ITR 14) , relevant extracts from which are reproduced below:

“16. Thus, in cases of wrong opinion or finding on merits, the CIT has to come to the conclusion and himself decide that the order is erroneous, by conducting necessary enquiry, if required and necessary, before the order under Section 263 is passed. In such cases, the order of the Assessing Officer will be erroneous because the order passed is not sustainable in law and the said finding must be recorded. CIT cannot remand the matter to the Assessing Officer to decide whether the findings recorded are erroneous…………The matter cannot be remitted for a fresh decision to the Assessing Officer to conduct further enquiries without a finding that the order is erroneous. Finding that the order is erroneous is a condition or requirement which must be satisfied for exercise of jurisdiction under Section 263 of the Act. In such matters, to remand the matter/issue to the Assessing Officer would imply and mean the CIT has not examined and decided whether or not the order is erroneous but has directed the Assessing Officer to decide the aspect/question.

17. This distinction must be kept in mind by the CIT while exercising jurisdiction under Section 263 of the Act and in the absence of the finding that the order is erroneous and prejudicial to the interest of Revenue, exercise of jurisdiction under the said section is not sustainable. ……………….. The jurisdictional precondition stipulated is that the CIT must

come to the conclusion that the order is erroneous and is unsustainable in law”

Government of India under a long term agreement. The assessee also had a branch office in Oman to oversee its investment in the JV company and it constituted Permanent Establishment (PE) in Oman in terms of India-Oman DTAA. ■ The assessee filed its return of income on 24-9-2010 for relevant assessment year 2010-11. Later on the case was selected for scrutiny and while completing assessment, the Assessing Officer allowed tax credit of Rs. 41.53 crores with respect to dividend income of Rs. 134.41 crores received by assessee from OMIFC which was exempt in Oman by virtue of article 8(bis) of Omanian Tax Laws. The said dividend income was simultaneously brought to the charge of tax in the assessment as per the Indian Tax Laws. ■ However, subsequently, Commissioner of Income-tax (CIT) was of view that as assessee did not pay any tax in Oman owing to exemption, no foreign tax credit was available to it. It was observed that article 25(4) requires that in order to claim credit, tax should have been payable in Oman if not for the tax incentives granted in Oman to promote economic development. The Commissioner opined that exemption granted by Oman cannot be treated as a tax incentive as same existed across the board and was simply a feature of Oman's Tax Law which does not tax dividend income. Accordingly the Commissioner revised the order of the Assessing Officer and disallowed the tax credit so claimed by assessee. ■ On appeal to the Tribunal: HELD ■ With regard to allowing credit for deemed dividend tax which would have been payable in Oman, the relevant provisions of the DTAA between the Republic of India and the Sultanate of Oman, read with section 90 of the Income-tax Act were considered. Clause (4) of article 25 of DTAA lays down that the tax payable shall be deemed to include the tax which would have been payable but for the tax incentive granted under the laws of the contracting State and which are designed to promote economic developments. Thus, the crucial issue to be examined is whether the dividend income was granted exemption in Oman with the purpose of promoting economic development. The exemption has been granted under article 8(bis) of the Omani Tax Laws. The said provision has been clarified and explained vide letter dated 11-12-2000 issued by the Sultanate of Oman,

Ministry of Finance, Secretariat General for Taxation, Muscat. [Para 18] ■ From the perusal of clarifications there remains no doubt regarding the purpose of granting exemption to dividend income. The interpretation of Omani Tax Laws can be clarified only by the highest tax authorities of Oman and such interpretation given by them must be adopted in India. Further, in the tax assessments made in Oman in respect of the PE of the assessee-society it is clearly mentioned that the dividend income which is included in the gross total income is, however, exempt in accordance with article 8(bis) and such exemption is granted with the objective of promoting economic developments within Oman by attracting investments. In view of the facts stated above, on merits also the assessee-society is entitled to tax credit in respect of deemed dividend tax which would have been payable in Oman. Therefore, the Commissioner was not justified in directing the Assessing Officer to withdraw the aforesaid tax credit. Further such credit was allowed by the Assessing Officer during several preceding assessment years and, therefore, when there is no change in the facts and the relevant provisions of law, following the well settled principle of consistency of approach, credit for deemed dividend tax is clearly allowable in respect of the assessment year under appeal. [Para 19] ……………..

■ In view of the above, the impugned order passed by the Commissioner under section 263 is without jurisdiction and not sustainable in law. Accordingly, the said order is hereby quashed and as a result, the assessee's appeal stands allowed. [Para 21] ■ Since the facts and circumstances pertaining to the assessment year 2011-12, the grounds of appeal raised by the assessee-society and the arguments and submissions on behalf of the assessee as well as on behalf of the department are identical and same. Therefore, for the assessment year 2011-12 also the impugned order of the Commissioner is quashed. Similarly, on merits also the Commissioner is not justified in giving directions to the Assessing Officer for withdrawal of tax credit in respect of deemed dividend tax as well as addition with regard to the undistributed profits reflected in the books of the P.E. [Para 22] ■ In the result, both the Appeals filed by the assessee stand allowed. [Para 23]” 53

13. The learned CIT(DR), in support of his contention stated that the order of the Pr. CIT is correct and has filed further submissions during the course of the hearing. The relevant portion (paras-3 to 5.2) of his submissions is reproduced below:- “3. With reference to Article 25 of DTAA, an AO knowing nuances of Income Tax would definitely ask the material to be produced to satisfy (the A O) that the claimed exemption of tax by Omani govt. is ‘designed for economic development’.

3. During the assessment proceedings, the letters dated 06.08.2000 and 11.12.2000 issued by Secretary General for Taxation, Sultanate of Oman were neither asked by A O nor produced by the assessee (these were first time filed by the assessee before the Pr. CIT). A copy of letter dated 11.07.2016 from the A O produced in support.

5.1 The Assessment Order does not make any enquiry regarding the issue of credit of Tax paid in Oman, directly. In fact the reference in the assessment order about the issue is in the context of dealing with the claim of assessee that the dividend income received from OMIFCO is exempt all together.

5.2 Ref. of dealing about the issue of credit of Tax paid in Oman case in AY 2006-07 does not help the assessee because a bare reading of relevant portion of the Assessment order (of AY 06-07) will show that it is an example of non-application of mind as well as violation of principles of natural justice.”

14.1 Even otherwise, since the Revenue has allowed the claim of tax credit to the assessee consistently on year to year basis the view now proposed to be substituted by the learned Pr. CIT is totally outside the ambit of the provisions of section 263 following the decision of the Hon'ble jurisdictional High Court in the case of CIT vs. Escorts Ltd. , 338 ITR 435, the relevant part of which reads as under:-

“Where a fundamental aspect of a transaction is found to have been permeated through different assessment years and this fundamental aspect has stood uncontested then the Revenue cannot be allowed to change its view taken in earlier assessment years unless it is able to demonstrate a change in circumstances in the subsequent Assessment Year.

Held, that the Commissioner’s order did not contain a finding to the effect that the stand taken by the Assessee that the units purchased from the Unit Trust of India had actually been physically delivered along with executed transfer deed was false. Without such a finding the allegation that the transactions were speculative could not be sustained. The fundamental nature of the transactions was examined year after year more importantly in the 55 Assessment Year 1986-87 it was specifically considered by the Commissioner (Appeals) and it remained the same. Given the fact that the Assessee had been engaged in these transactions in the preceding Assessment Years, the Commissioner could have had no occasion to have recourse to the revisional powers under Section 263 of the Act on the fundamental aspects of the transactions in issue on which a view had been taken and not shown to have been challenged.”

14.2 Respectfully following the findings of the Hon'ble Jurisdictional High Court, the learned Pr. CIT has erred in assuming jurisdiction u/s.263 of the I.T. Act. Accordingly, the learned Pr. CIT could have no occasion to have recourse to the revisional powers u/s.263 on the very fundamental issue that a consistent view has to be adopted after detailed inquiries by the Revenue for all the earlier years i.e. A.Ys. 2006-07 to 2009-10. Further, as discussed above, we have no hesitation in holding that the order passed by the learned Pr. CIT is bad in law for the following reasons:-

(a) That, detailed inquiries were made by the Assessing Officer at the time of the original assessment proceedings with regard to the tax credit on deemed dividend which would have been payable in Oman but for the exemption granted the assessee had filed detailed replies in response to the query which were duly considered by the Assessing Officer before allowing tax credit.

(b) That, such credit was allowed by the Revenue for all the earlier years i.e. A.Ys. 2006- 07 to 2009-10, therefore, we have no hesitation in holding that there was complete application of mind on the part of the Assessing Officer and that the Assessing Officer has adopted a view consistent with the preceding years and, therefore, the Assessing Officer having taken a plausible view after full application of mind, the view of the learned Pr. CIT cannot substitute his view by assuming jurisdiction u/s.263 of the Act. 14.3 In this respect we would like to place reliance on the decision of the Hon'ble Delhi High Court in the case of CIT vs. Ashish Rajpal, 320 ITR 674, the Headnote of which is reproduced hereunder for ready reference: “The parameters and principles laid down by the courts which govern the exercise of power by the Commissioner under the provisions of section 263 of the Income-tax Act, 1961, are: (i) The power is supervisory in nature, whereby the Commissioner can call 56 for and examine the assessment records. (ii) The Commissioner can revise the assessment order if the twin conditions provided in the Act are fulfilled, that is, that the assessment order is not only erroneous but is also prejudicial to the interest of the Revenue. The fulfillment of both the conditions is an essential prerequisite. (iii) An order is erroneous when it is contrary to law or proceeds on an incorrect assumption of facts or is in breach of the principles of natural justice or is passed without application of mind, that is, is stereo-typed, inasmuch as, the Assessing Officer, accepts what is stated in the return of the assessee without making any enquiry called for in the circumstances of the case, that is, proceeds with “undue haste”. (iv) The expression “prejudicial to the interest of the Revenue” while not to be confused with the loss of tax will certainly include an erroneous order which results in a person not paying tax which is lawfully payable to the Revenue. (v) Every loss of tax of the Revenue cannot be treated as being “prejudicial to the interest of the Revenue”. For example, when the Assessing Officer has recourse to one of the two courses possible in law or where there are two views possible and the Commissioner does not agree with the view taken by the Assessing Officer which has resulted in a loss. (vi) There is no requirement of issuance of a notice before commencing proceedings under section 263 . What is required is adherence to the principles of natural justice by granting to the assessee an opportunity of being heard before passing an order under section 263 . (vii) If the Assessing Officer acts in accordance with law his order cannot be termed as erroneous by the Commissioner, simply because according to him, the order should have been written “more elaborately”. Recourse cannot be had to section 263 to substitute the view of the Assessing Officer with that of the Commissioner. (viii) The exercise of statutory power under section 263 of the Act is dependent on existence of objective facts ascertained from prima facie material on record. The evaluation of such material should show that tax which was lawfully exigible was not imposed.

14.4 Respectfully following the above decision of the Hon'ble High Court we have no recourse but to hold that the order passed by the learned Pr. CIT u/s.263 is bad in law. Since the order passed by the learned Pr. CIT which is under appeal has been quashed by us, going into the merits of the issues is only of academic interest. However, since detailed arguments have been raised on the merits of the issues, for the sake of completeness, we proceed to examine and decide the issues on merits as well.

14.5 With regard to allowing credit for deemed dividend tax which would have been payable in Oman, the issue now stands covered by the ITAT decision in the case of Krishak Bharti Cooperative Ltd. , 67 taxmann.com 138. Relevant paras 18 & 19 are reproduced hereunder:-

19. From the above clarifications there remains no doubt regarding the purpose of granting exemption to dividend income. The interpretation of Omani Tax Laws can be clarified only by the highest tax authorities of Oman and such interpretation given by them must be adopted in India. Further, in the tax assessments made in Oman in respect of the PE of the assessee-society it is clearly 58 mentioned that the dividend income which is included in the gross total income is, however, exempt in accordance with Article 8(bis) and such exemption is granted with the objective of promoting economic developments within Oman by attracting investments. In view of the facts stated above, we are of the considered view that on merits also the assessee-society is entitled to tax credit in respect of deemed dividend tax which would have been payable in Oman. Therefore, we hold that on merits also the learned PCIT was not justified in directing the Assessing Officer to withdraw the aforesaid tax credit. (emphasis supplied)

14.6 Respectfully following the decision of the Coordinate Bench of Delhi Tribunal in the case of Krishak Bharti Cooperative Ltd., (Supra), we are of the considered view that on merit also the assessee is entitled to tax credit in respect of the deemed dividend tax which would have been payable in Oman.

“66. The A O has failed to allocate or make inquiry as regards the allocation of interest in the particular head of income. For example no interest has been attributed towards the investments which are in the range of Rs.892.33 crores in the F.Y.2009-10. The assessee simply submitted that in assessment year only 10% of the funds have been utilized out of the total own funds of Rs.8171 crores but without establishing the nexus. Similarly if there is working progress, it cannot be presumed that only own funds have been utilized. The working progress ultimately becomes that asset. The assessee has himself admitted that there are interest bearing borrowings for fixed assets. As per section 36(1)(iii) proviso, there has to be date-wise calculation as the law is clear. The relevant section is reproduced as under:-

15.1 In this respect, the learned counsel of the assessee submitted that detailed inquiries were made by the Assessing Officer in respect of the expenditure incurred by it on the fixed assets. Reference was made to the notice issued u/s.142(1) of the Act, which is compiled at pages 275 to 278 of the paper book (refer points No.9, 10, 14, 15 & 19) wherein the Assessing Officer had raised queries in respect of the details of major additions to the fixed assets, brief note regarding the capital work-in-progress, the manner in which the depreciation was claimed and the details of secured as well as unsecured loans. Replies of the above queries are also compiled at pages 392 of the paper book. Further, the learned counsel referred to the audited financial statements of the assesseewhich was also compiled before us in the paper book. Reference to page 231 of the paper book comprising significant accounting policies was made wherein the auditor has certified that all indirect expenditure are incurred during the period up to the date of commercial production attributable to the construction of the project was capitalized on proportionate basis. Further, reference was also made to the Significant Accounting Policies in the Auditors’ Report compiled at page 235 of the paper book in respect of the borrowing cost which is reproduced hereunder for the sake of brevity:- “13. Borrowing Cost Borrowing costs that are attributable to the acquisition or construction of qualifying assets are capitalized as part of cost of such assets. A qualifying asset is one that necessarily takes substantial period of time to get ready for intended use. All other borrowing costs are recognized as an expense in the period of which they are incurred.”

15.2 Reference was also made to page 237 of the paper book comprising of the Balance Sheet and detailed break-up of the gross block of the addition made to the fixed assets. The learned counsel also pointed out that the internal cash flows as well as profit before depreciation was sufficient enough to meet with the addition in the fixed assets. The learned counsel of the assesseealso pointed out that the borrowing cost of Rs.7.08 crores in respect of the qualifying assets have been capitalized during the year. In this respect he drew our attention to page No.258 of the paper book i.e. Schedule-20 – Note No.(v).

15.3 The Assessing Officer also relied upon the synopsis filed vide pages No.72 to 214 of the paper book. Relevant part of the Synopsis filed is reproduced hereunder for ready reference:

“11.15 With regard to the various observations made by the learned Pr. CIT referred to above, it is humbly submitted with due respect that all these observations are merely on assumptions and suspicion and the learned Pr. CIT has completely ignored the factual position as thoroughly explained before him. It is reiterated that this relevant issue was fully examined by the Assessing Officer during the course of the assessment proceedings with reference to the annual report containing the audited accounts with schedules and notes thereto. The Assessing Officer, as mentioned above, raised queries and replies were filed which were examined by the Assessing Officer which proves that there as full application of mind on the part of 61 the Assessing Officer. The following factual position which emerges from the annual report and the audited accounts which were thoroughly examined by the Assessing Officer, would prove that the various assumptions drawn by the learned Pr. CIT are not inconsonance with the factual position which emerges from the audited accounts.

(a) At page-83 of the annual report under the heading “Significant Policies”, against Sr. No.4 the following remarks:-

“4. Expenditure incurred during Construction Period.

In respect of new/major expansion of Units, the indirect expenditure incurred during construction period upto the date of the commencement of commercial production which is attributable to the construction of the project, is capitalized on proportionate basis.” (b) At page-87 of the annual report under Sr. No.13 the following statement is made:- “13. Borrowing Cost.

Borrowing costs that are attributable to the acquisition or construction of qualifying assets are capitalized as part of cost of such assets. A qualifying asset is one that necessarily takes substantial period of time to get ready for intended use. All other borrowing costs are recognized as an expense in the period in which they are incurred.”

(c) At page-89 of the annual report containing the Balance Sheet as on 31st March, 2010, the value of capital work in progress as on 31.3.2010 is shown at Rs.333 crores whereas the same was Rs.290 crores as on 31.3.2009. Thus there is accretion of only Rs.42.02 crores. Further, it is notable that the total value of fixed assets as on 31.3.2010 is Rs.7531.28 crs. as against Rs.7552.95 crs. as on 31.3.2009 which proves that the value of fixed assets has actually gone down and there has been no accretion whatsoever.

(d) At page-90 of the annual report containing the Profit and Loss Account for the F.Y. 2009-10 the total interest expenditure is debited at Rs.764.98 crs. as against the total expenditure of Rs.1023.20 crs. for the preceding Financial year which show that the total interest expenditure has substantially reduced during the present year.

(e) At page-102 of the annual report details of loans and advances given by the assessee are reflected in Schedule-11. This shows that the total quantum of such loans and advances as on 31.3.2010 stands at Rs.3376.87 crs. as against preceding year’s Rs.5464.77 crs. Thus, the loans and advances have substantially reduced.

(f) At page-110 of the Report containing Schedule-20 under Sr.No. (iv) it is mentioned that “borrowing cost amounting to Rs.7.08 crs. in respect of qualifying assets has been capitalized during the year.” This shows that the relevant component of interest expenditure pertaining to capital asset has already been capitalized by the appellant-society and thus there is no basis for the assumption of the learned Pr. CIT that the appellant-society has failed to capitalize the cost of borrowing.

(g) At pages 98 & 99 of the annual report, complete details of investments have been given in Schedule- 7. It is seen that the total investments as on 31.3.2010 stand at Rs.7531.10 crs. as against Rs.7552.95 crs. as on 31.3.2009. This shows that the quantum of investment has actually gone down by Rs.21.67 crs. Thus, it is clear that the apprehension or rather suspicion of the learned Pr. CIT that borrowed funds have gone into investment during the present year is against the correct factual position which was thoroughly examined by the Assessing Officer.

11.16 To reiterate, even the learned Pr. CIT has not disputed that the total investments are merely 10% of the interest free own funds available with the appellant-society. The primary claim of the appellant-society is that even these investments were in the nature of strategic investments for business purpose only and, therefore, even if it is assumed that part of the borrowed funds went into these investments, no disallowance can be made u/s. 36(1)(iii) for the simple reason that such expenditure would be entirely for business purposes. The appellant-society relies on the legal position as discussed below:- (i) CIT vs. Rajendra Brothers, 52 taxmann.com 334 (Guj.) The Headnote of this case is reproduced below for ready reference:

■ Both the Commissioner (Appeals) as well as the Tribunal have recorded concurrent findings of fact to the effect that the assessee was also running a sarafi business and the funds obtained from the bank had got merged with the funds of other businesses. Having regard to the total funds available from the sarafi business, the Tribunal has found no reason to believe that bank funds have been diverted as interest free/lower interest advances. Moreover, no material has been brought on record by the revenue either to demonstrate that the sarafi business was bogus or to establish diversion of interest bearing funds as low/interest free advances. ■ The revenue is not in a position to point out any material to the contrary so as to dislodge the concurrent findings of fact recorded by the Commissioner (Appeals) and the Appellate Tribunal. From the facts noted hereinabove, it is apparent that the Tribunal has based its conclusion on the concurrent findings of fact recorded by it upon appreciation of the evidence on record. It is not the case of the revenue that the Tribunal, while appreciating the evidence on record has taken into consideration any irrelevant material, or that any relevant material has been ignored. ■ Under the circumstances, in the absence of any perversity being pointed out in the concurred findings of fact recorded by the Tribunal, no question of law, much less, any substantial question of law can be said to arise out of the impugned order so as to warrant interference. ■ The appeal, therefore, fails and is accordingly dismissed. [Para 7].” (emphasis supplied)

In the above case the Hon'ble Gujarat High Court held that it is the onus of the Revenue to establish that interest bearing funds were diverted for non-business purposes.

(ii) CIT vs. Ram Kishan Verma, 64 taxmann.com 358 (Raj.) The Catch-note of this case is reproduced below for ready reference:

“Section 36(1)(iii) of the Income-tax Act, 1961 - Interest on borrowed capital (Interest free loans) - Assessment years 2005-06 and 2008-09 - Whether where capital of assessee was more than interest free advances made to friends/relatives and Assessing Officer was not able to prove nexus between interest bearing loans having been diverted towards interest free loans/advances, no part of interest paid on loans could be disallowed - Held, yes [Paras 12, 13 and 14] [In favour of assessee].” (emphasis supplied)

In the above case also it was held that the onus is on the Assessing Officer or the Department to prove nexus between interest bearing loans having been diverted towards interest free loans/advances.

(iii) CIT vs. Vijay Solvex Ltd., 59 taxmann.com 294 (Raj.)

The Catch-note of this case is reproduced below for ready reference:

“Section 36(1)(iii) of the Income-tax Act, 1961 - Interest on borrowed capital (Interest-free advances to sister concerns) - Assessment year 1992-93 - During course of assessment proceedings, Assessing Officer noticed that on one hand, assessee-company was making payment of interest to banks etc. but on other hand, it had advanced money to sister concerns on which no interest was charged - Assessing Officer was of view that interest bearing loans had been diverted to non- business purposes and, accordingly, he disallowed interest on interest-free advances given to sister concerns - It was observed that assessee-company had its own sufficient funds and revenue was unable to prove nexus between borrowed funds and advances given - Whether, on facts, notional interest disallowed by Assessing Officer was to be deleted - Held, yes [Paras 16 and 17] [In favour of assessee].” (emphasis supplied)

(iv) Pranik Shipping & Services Ltd. vs. ACIT, 19 taxmann.com 107 (Mum.) The Headnote of this case is reproduced below for ready reference:

“FACTS-I During assessment proceedings, the Assessing Officer observed that the assessee had given interest-free advances aggregating to Rs. 50.29 lakh to its sister concerns whereas substantial amount of interest was paid on the funds borrowed. On being show caused as to why the proportionate disallowance of interest be not made, the assessee justified its claim by stating that it had share capital, reserves and surplus and unsecured loans amounting to Rs. 3544.64 lakh on which no interest was payable. The Assessing Officer, however made disallowance under section 36(1)(iii) by applying 15 per cent rate of interest. The Commissioner (Appeals) upheld the disallowance.

On assessee's appeal : HELD-I The assessee has share capital of Rs. 15.25 crore along with reserves and surplus amounting to Rs. 19.48 crore thereby totalling shareholders' fund to the tune of Rs. 35.73 crore. Even if the debit balance of profit and loss account of Rs. 3.93 crore and the liability of Rs. 24.43 crore towards interest payable not debited to profit and loss account is considered, still there is excess of share capital and reserves to the extent of Rs. 7.37 crore [35.73 crore - 28.36 crore (3.93 crore + 24.43 crore)]. As against this excess of shareholders' fund of Rs. 7.37 crore, the assessee advanced interest-free loans to its sister concerns amounting to Rs. 50.29 lakh. [Para 4]

From the decision of jurisdictional High Court in the case of CIT v. Reliance Utilities & Power Ltd. [2009] 313 ITR 340 / 178 Taxman 135 (Bom.), it is manifest that if the assessee has interest-free funds as well as interest bearing funds at its disposal, then the presumption would be that investments were made from interest-free funds available with the assessee. In the instant case, the interest-free funds available at the disposal of the assessee are far in excess of the interest-free loans advanced to the sister concerns. Therefore, following the mandate of the jurisdictional High 66

Court in the case of Reliance Utilities & Power Ltd. (supra ), the addition is to be deleted. [Para 6].”

(v) CIT vs. HDFC Bank Ltd., 49taxmann.com 335 (Bom.) The relevant observations of the Hon'ble Bombay High Court are reproduced below from para-4 of the Judgement:-

“4. We do not agree. In the case at hand, as recorded by the ITAT, undisputedly the Assessee's own funds and other non-interest bearing funds were more than the investment in the tax free securities. The ITAT therefore held that there was no basis for deeming that the Assessee had used the borrowed funds for investment in tax free securities. On this factual aspect, the ITAT did not find any merit in the contention raised by the Revenue and therefore, accordingly answered the question in favour of the Assessee. On going through the order of the CIT (Appeals) dated 28th March 2005 as well as the impugned order, we do not find that the CIT (Appeals) or the ITAT erred in holding in favour of the Assessee. In this regard, the submission of Mr Mistry, the learned Senior Counsel appearing on behalf of the Assessee, that this issue is squarely covered by a judgment of this Court in the case of CIT v. Reliance Utilities & Power Ltd. [2009] 313 ITR 340/178 Taxman 135 (Bom.) is well founded.” (emphasis supplied)

(vi) CIT vs. Gujarat State Fertilizers and Chemicals Ltd., 358 ITR 323 (Guj.) The Headnote of this case is reproduced below for ready reference:

“Held, that the dividend income earned was Rs. 1,14,43,040 and the estimate of expenditure was assessed at the rate of 10 per cent. of the total income. Had the Department been successful in establishing that the assessee had incurred the expenses to earn the dividend income from the borrowed funds, the entire discussion of application of section 14A of the Act could be understood. However, when both the Commissioner (Appeals) and the Tribunal had noted that the assessee had sufficient funds available with it, which were more than the amount it invested for earning the dividend income, the authorities had correctly set aside the order of disallowance under section 14A of the Act in respect of interest expenditure. When the very basis for employing section 14A of the Act on the factual matrix was lacking, the disallowance to the 67 extent of 10 per cent. of the dividend income was not permissible. When it transpired from the record that the assessee's own funds were higher than the investment made by it and with nothing to indicate that the borrowed funds were utilised for the purpose of investment in shares and for earning dividends, the Tribunal committed no error. As far as the other administrative expenses were concerned, to put an end to the entire dispute the assessee agreed to a disallowance of Rs. 5 lakhs. This was reasonable.” (emphasis supplied)

(vii) CIT vs. Torrent Power Ltd., 363 ITR 474 (Guj.) The relevant part of the Headnote of this case is reproduced below for ready reference:

“Held, dismissing the appeal, that the material on record showed that the assessee had shareholding funds to the extent of Rs. 2607.18 crores and the investment made by it was to the extent of Rs. 195.10 crores. In other words, the assessee had sufficient funds for making the investments and it had not used borrowed funds for such purpose. There was nothing on record to indicate that there had been in fact any actual expenditure incurred by the assessee for earning tax-free income of Rs. 14 crores. Disallowance of 1 per cent. of interest expenditure artificially or on the basis of assumption rightly had not been sustained by the Tribunal. The deletion of addition was justified.”

CIT vs. Hero Cycles Ltd. [2010] 323 ITR 518 (P&H) (para 10) CIT vs. Sintex Industries Ltd. [2014] 2 ITR-OL 364 (Guj.) (para-11) CIT vs. Suzlon Energy Ltd. [2013] 354 ITR 630 (Guj) (para 9)

CIT vs. UTI Bank Ltd. [2014] 2 ITR-OL 366 (Guj) (para 10) Godrej and Boyce Mfg. Co. Ltd. v. DCIT [2010] 328 ITR 81 (Bom)(para 11)

ITO v. Daga Capital Management P. Ltd. [2009] 312 ITR (AT)1 (Mum) [SB] (para 5)

Maxopp Investment Ltd. v. CIT [2012] 347 ITR 272 (Del.)(Para 6)”

(emphasis supplied) (viii) CIT vs. Gujarat Foils Ltd., 377 ITR 324 (Guj.)

The relevant part of this judgement is reproduced below from page 334 of the Report:

“Now, so far as Tax Appeal No. 963 of 2008 for the assessment year 2002-03 and Tax Appeal No. 964 of 2008 for the assessment year 2003-04 with respect to the disallowance of interest expenses claimed under section 36(1)(iii) of the Act is concerned, the learned Tribunal has observed that the assessee was having interest- free funds available with it. The learned Tribunal has observed that the advances were given by the assessee to various parties to the extent of Rs. 2,62,48,341 during the financial year 1996-97. The learned Tribunal has also found that even the assessee was having interest-free funds to the extent of Rs. 3,93,65,572 as on March 31, 2002. It is required to be noted that in the earlier preceding year no disallowance was made out of the interest claimed by the assessee. Considering the aforesaid facts and circumstances of the case, the learned Tribunal has rightly deleted the disallowance on interest expenses. We are in complete agreement with the view taken by the learned Tribunal…” (emphasis supplied)

(ix) CIT vs. Reliance Utilities and Power Ltd., 313 ITR 340 (Bom.) The relevant part of the Headnote of this case is reproduced below for ready reference:

“Held, dismissing the appeal, that if there were funds available both interest-free and overdraft and/or loans taken, then a presumption would arise that investments would be out of the interest-free funds generated or available with the company, if the interest-free funds were sufficient to meet the investments. In this case this presumption was established considering the finding of fact both by the Commissioner (Appeals) and the Tribunal. The interest was deductible. East India Pharmaceutical Works Ltd. v. CIT [1997] 224 ITR 627 (SC) and Woolcombers of India Ltd. v. CIT [1982] 134 ITR 219 (Cal) relied on.” (emphasis supplied) a. Bombay High Court-CIT Vs. HDFC Bank[2014] 366 ITR 505 “In the present case, undisputedly the Assessee's capital, profit reserves, surplus and current account deposits were higher than the investment in the tax-free securities. In view of this factual position, as per the judgment of this Court in the case of Reliance Utilities & Power Ltd. (supra), it would have to be presumed that the investment made by the Assessee would be out of the interest-free funds available with the Assessee. We therefore, are unable to agree with the submission of Mr Suresh Kumar that the Tribunal had erred in dismissing the Appeal of the Revenue on this ground. We do not find that question (A) gives rise to any substantial question of law and is therefore rejected.”

The above ratio has been reiterated recently by the Hon’ble Bombay High Court again in the case of the same assessee [2016-TIOl-408-MUM-IT] has reiterated the above ratio laid down by it again in the following words castigating the ITAT , Mumbai for deviating from the same: 11(a)…The petitioner was possessed of sufficient interest free funds of Rs.2153 crores as against the investment in tax free securities of Rs.52.02 crores. Consequently, there is a presumption that the investment which has been made in the tax free securities has come out of the interest free funds available with the petitioner. This is so as it has been held by this Court in the petitioner's own case for an earlier Assessment year being HDFC Bank Ltd.(supra). This decision on the above issue has been accepted by the Revenue. This is evidenced by the fact although an appeal has been filed to the Supreme Court with regard to another issue arising from the order in HDFC Bank Ltd. (supra) namely broken period interest, no appeal on this issue as raised before the Tribunal has been challenged before the Supreme Court…… 14. The only basis for proceeding on the basis that there is a conflict between the two decisions of this court which emerges from the impugned order is that in petitioner's own case in HDFC Bank Ltd. (supra), reliance was placed upon the decision of this Court in Reliance Utilities and Power Ltd. (supra) to conclude that where both interest free funds and interest bearing funds are available and the interest free funds are more than the investments made, the presumption is that the investment in the tax free securities would have been made out of the interest free funds available with the assessee. Though, 70 the decision of this Court in Reliance Utilities and Power Ltd. (supra) was rendered in the context of Section 36(1)(iii) of the Act, it was consciously applied by this Court while interpreting Section 14A of the Act in HDFC Bank Ltd. (supra). ..” The above ratio has also been recently followed by the Karnataka High Court in the case of CIT Vs. Microlabs Ltd. reported at [2016] 383 ITR 490 (Karn).

The consistent view held in the above cases is that if the investments made by the assessee are adequately covered by own funds the presumption would be that no borrowed funds have been diverted for making these investments and further that the onus is on the Revenue to establish nexus between the borrowed funds and the investments made by the assessee. Even if, for the sake of argument, it is assumed that two interpretations on this issue are possible, it is a settled principle that the interpretation which favours the assessee must be adopted. This principle was explained by the Hon’ble Supreme Court in the landmark decision in the case of CIT vs. Vegetable Products Ltd. 88 ITR 192. Again in the case of Manish Maheswari vs. ACIT 289 ITR 341 the Hon’ble Supreme Court observed that where two interpretations are possible the Courts should interpret the provisions in favour of the tax payer and against the Revenue. In the case of Pradip J. Mehta vs. CIT 300 ITR 231 the Hon’ble Supreme Court reiterated that “when two interpretations are possible, then invariably the Court would adopt that interpretation which is in favour of the tax payer and against the Revenue”.

11.17 In the backdrop of the factual and the legal position explained above in detail, it is respectfully submitted that on merits also the learned Pr. CIT was wholly unjustified in setting aside the assessment order on this issue to the Assessing Officer with directions to go into the records of the preceding 10 years for working out the average and then to apply debt equity formula. On Merits, as elaborated in the submissions made before the Pr CIT (reproduced at para-11.4) , looking at the issue from various angles, the proposed disallowance u/s 36(1)(iii) cannot be sustained as summarized below: � Onus of proving non diversion of Funds borrowed for Working Capital towards CWIP and Fixed Assets discharged by Assesseeby submission of Independent Statutory Auditor Certificcate and availability of Own Funds & Internal Accruals 71

� Investments are financed from Own Funds given that they constitute not more than 10% of the Own Funds- Presumption to apply in assessee’s favour

� Even otherwise, there is a business nexus to the Investments, thus covered under “for the purpose of business” u/s. 36(1)(iii) as interpreted by the Apex Court � Alternatively, Deduction allowable under 57(iii) even if presumption of Own funds and Business nexus is applied against the assessee.. Interest cannot be added to “Cost” as suggested by the Ld Pr CIT in view of express provisions to the contrary in the Income Tax Act. Further, there is abundant evidence that all these issues pertaining to section 36(1)(iii) were thoroughly examined by the Assessing Officer and there was full application of mind by him during the course of the assessment proceedings and therefore the learned Pr. CIT has no jurisdiction to invoke his powers u/s.263 of the I.T. Act For these reasons, it is humbly submitted that, the impugned order passed by the learned Pr. CIT u/s.263 on this issue may kindly be held as bad in law and quashed.”

15.4 Against the aforesaid contentions of the assessee’s counsel, the learned DR has filed the following further submissions during the course of the hearing:

“6. On the issue of 36(1)(iii) and 36(1) proviso, there is case of non-enquiry and non-application of mind. AR could not point-out any material to indicate the contrary. The attempt to say that provisions of sections 36(1) and 14A are mutually exclusively and A O has discussed issue of 14A, does not prove case of application of mind and any enquiry (much less adequate –enquiry).

(a) That, as discussed above, detailed inquiries were made by the Assessing Officer with regard to the capitalization of interest to fixed assets as well as capital work in progress.

(b) That, even on the facts of the case the assessee had sufficient interest-free funds to meet with the capital expenditure and, therefore, following the ratio of the decision of the Hon'ble Bombay High Court in Reliance Utility and Power Ltd. (supra), no disallowance u/s.36(1)(iii) is called for.

(c) That, the assessee had already discharged its onus of proving non-diversion of funds borrowed for working capital towards capital work in progress and fixed assets by submitting a certificate of an independent statutory auditor and proved availability of own funds and internal accruals which was not rebutted by Ld. Pr.CIT. 16.2 Therefore, since there was full application of mind on the part of the Assessing Officer during the course of the assessment proceedings as well as based on the above evidences placed before him, the learned Pr. CIT has no jurisdiction to invoke the provisions to pass an order u/s.263 of the I.T. Act. For this reason, we hold that the order passed by the learned Pr. CIT u/s.263 on this issue is bad in law and set aside.

18. In view of the above, we hold that the impugned order passed by the learned Pr. CIT u/s. 263 of the Income Tax Act is without jurisdiction and not sustainable in law. Accordingly, the said order is hereby quashed and as a result, the Assessee’s Appeal stands allowed.