INCOME TAX OFFICER ( INTERNATIONAL TAXATION), WARD, COIMBATORE, COIMBATORE V. GURUSAMY SIVASANKAR, COIMBATORE

ITA 1548/CHNY/2024

AI Insights

The case involves an appeal by the Revenue against the order of the Learned Commissioner of Income Tax, Appeal, Chennai-16, which directed the Assessing Officer to grant double taxation relief to the assessee, Gurusamy Sivasankar. The relief was in respect of tax paid on the same income, which was taxed in both India and Indonesia. The Assessing Officer initially accepted the assessee's return, which claimed relief under sections 90/90A of the Income-tax Act, 1961, due to the DTAA between India and Indonesia. However, this relief was later denied in a rectification order. The Tribunal had to determine the correct residential status of the assessee to decide on the eligibility for DTAA benefits.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 107040 (ITAT-CHENNAI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-02-2025
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2016-2017
• Laws Referred To: Income-tax Act, 1961, DTAA between India and Indonesia
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: G. SARATHA
• Assessee Lawyers: J. SARAVANAN
• Keywords: Rectification of order; Double taxation relief; Residential status
• Section: 143(3); 154

Judgement Text

"आयकर अपीलीय अिधकरण, ‘ए’ \u0011ा यपीठ, चे\u0016ई। IN THE INCOME TAX APPELLATE TRIBUNAL ‘A’ BENCH: CHENNAI \u0019ी एबी टी. वक\u001e, \u0011ा ियक सद! एवं \u0019ी जगदीश, लेखा सद! क े सम( BEFORE SHRI ABY T. VARKEY, JUDICIAL MEMBER AND SHRI JAGADISH, ACCOUNTANT MEMBER आयकर अपील सं./ITA No.1548/Chny/2024 िनधा:रण वष: /Assessment Year: 2016-17 The Income Tax Officer, (International Taxation Ward), Coimbatore. Vs. Gurusamy Sivasankar, 67, Karukkampalayam, Unjalur Post, Kolathupalayam, Erode-638 152. [PAN: CMOPS 4106F] (अपीलाथ\u0007/Appellant) (\b\tयथ\u0007/Respondent) अपीलाथ\u001e की ओर से/ Assessee by : Shri J.Saravanan, Advocate IJथ\u001e की ओर से /Revenue by : Mrs. G. Saratha, Addl. CIT सुनवाई की तारीख/Date of Hearing : 18.11.2024 घोषणा की तारीख /Date of Pronouncement : 14.02.2025 आदेश / O R D E R PER JAGADISH, A.M : Aforesaid appeal filed by the Revenue for Assessment Year (AY) 2016-17 arises out of the order of Learned Commissioner of Income Tax, Appeal, Chennai-16 [hereinafter “CIT(A)”] dated 21.03.2024 in the matter of assessment framed by the Assessing Officer [AO] u/s. 154 r.w.s 143(3) of the Income-tax Act,1961 (hereinafter “the Act”) on 06.07.2022. ITA No.1548/Chny/2024 :- 2 -: 2. The only ground of appeal in this appeal of Revenue is against directing the A.O to grant double taxation relief on the tax paid in respect of same income of the assessee taxed both India and Indonesia in the rectification order passed on 06.07.2022. 3. The assessee has filed his return of income on 24.09.2016 showing total income of Rs. 1,65,06,570/-. The assessee has claimed relief of Rs. 47,08,992/- u/s. 90/90A of the Act under DTAA between India and Indonesia in respect of advance tax paid in Indonesia. The A.O in the assessment order passed u/s. 143(3) has accepted the return. However, the A.O has rectified the above order u/s. 154 of the Act denying the relief u/s. 90/90A of the Act. The assessee filed an appeal before Ld. CIT(A). The Ld. CIT(A) has noted that the assessee is resident in India and tax has been paid by him in respect of profit or income arising in Indonesia and the said profit of income has been subjected to tax both in India and Indonesia. The Ld. CIT(A) therefore, held that the assessee is to be given credit of Indonesia tax paid u/s. 92 of the Act r.w.s 23(2) of the DTAA between India and Indonesia. The Revenue is in appeal raising the ground that the assessee is not eligible to claim relief under Article 23(2) since the assessee is a non- resident of India. ITA No.1548/Chny/2024 :- 3 -: 4. The Ld. Authorized Representative (A.R) of the assessee has argued that the assessee is a resident in India and the A.O has wrongly held him non-resident. The Ld. AR has further argued that the assessee is eligible for DTAA benefit on the same income taxed in the two countries and the A.O has correctly allowed the same in assessment order passed u/s. 143(3) of the Act, which cannot be called mistake apparent from record and rectified u/s 154 of the Act. 5. The Ld. Departmental Representative (DR), on other hand, supported the order of A.O and argued that DTAA benefit is not available to assessee. 6. We have heard the rival submissions, and perused the materials available on record. The Revenue has raised the ground that the assessee, being a non-resident is not eligible to claim relief under Article 23(2) of the DTAA between India and Indonesia. The Ld. AR has contended that the assessee is a resident based on his stay in the country. As the issue of residential status is central in determining eligibility for relief under Article 23(2) of the DTAA, the matter is restored back to the file of A.O. The A.O is directed to ascertain the residential status of the assessee and decide the issue accordingly. In ITA No.1548/Chny/2024 :- 4 -: view of the above, the appeal filed by the Revenue is allowed for statistical purposes only. 7. In the result, the appeal filed by the Revenue is allowed for statistical purposes. Order pronounced on 14th February, 2025. Sd/- Sd/- (एबी टी. वक\u001e) (ABY. T. Varkey) \u0011ाियक सद! / Judicial Member (जगदीश) (Jagadish) लेखा सद! /Accountant Member चे\u0010नई/Chennai, \u0013दनांक/Dated: 14th February, 2025. EDN/- आदेश क\u0016 \bितिल\u0019प अ\u001aे\u0019षत/Copy to: 1. अपीलाथ\b/Appellant 2. \t थ\b/Respondent 3. आयकर आयु\u0010/CIT, Coimbatore 4. िवभागीय \tितिनिध/DR 5. गाड\u0019 फाईल/GF "