A.C.I.T Cir - 21,kolkata, Kolkata V. Shree Prithvish Nag, Kolkata

ITA 1067/KOL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100039 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-11-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 03-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P K CHAKRABORTY JCIT SRDR
• Assessee Lawyers: R P KUMRA
• Keywords: Residential status
• Section: 147; 11; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 1067 / KOL / 2013 ASSESSMENT YEAR :2004-05 ACIT, CIRCLE-21 169 A.J.C. BOSE ROAD, BAMBOOVILLA, 3 RD FLOOR, KOLKATA 700 014 V/S . SHRI PRITHVISH NAG 254-E, N.S.C BOSE ROAD, KOLKATA 700 047 [ PAN NO. ACRPN 0168 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI P.K. CHAKRABORTY, JCIT, SR-DR /BY RESPONDENT SHRI R.P.KUMRA, ADVOCATE /DATE OF HEARING 28-10-2015 /DATE OF PRONOUNCEMENT 06-11-2015 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE REVENUE IS ARISING OUT OF ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)XIV, KOLKATA IN APPEAL NO.527/C IT(A)-XIV/KOL/11-12 DATED 27.02.2013. ASSESSMENT WAS FRAMED BY ACIT, CI RCLE-21, KOLKATA U/S 147 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERR ED TO AS THE ACT) VIDE HIS ORDER DATED 24.12.2009 FOR ASSESSMENT YEAR 2004-05. 2. SOLE ISSUE RAISED BY REVENUE IN THIS APPEAL IS T HAT LD. CIT(A) HAS ERRED IN DELETING THE DISALLOWANCE MADE BY ASSESSING OFFI CER FOR NOT FILING DECLARATION REQUIRED U/S 115H OF THE ACT. 3. BRIEFLY STATED FACTS ARE THAT ASSESSEE IS AN IND IVIDUAL AND DECLARED INTEREST INCOME ON NRE ACCOUNT OF 28,82,656/- AND ASSESSEE OFFERED TAX AT ITA NO.1067/KOL/2013 A.Y. 2004-05 ACIT CIR-21 KOL. V. SH PRITHVISH NAG PAGE 2 LOWER RATE BY VIRTUE OF THE PROVISIONS OF SEC. 115H OF THE ACT. AO CALLED UPON THE ASSESSEE TO PRODUCE THE DECLARATION AS REQUIRED IN THE SAID SECTION. HOWEVER, ASSESSEE FAILED TO PRODUCE THE SAME. THERE FORE AO TAXED THE INTEREST INCOME AT NORMAL RATE @ 30%. AGGRIEVED, AS SESSEE PREFERRED APPEAL BEFORE LD. CIT(A) WHO DELETED THE ADDITION MADE BY AO BY OBSERVING IN PARA- 5 OF HIS ORDER, WHICH REPRODUCED BELOW:- 5. I HAVE CAREFULLY CONSIDERED THE ASSESSMENT ORDE R AND THE SUBMISSIONS OF THE APPELLANT. HAVING CONSIDERED THE FACTS OF THE CASE, I FIND THAT THE APPELLANTS CLAIM FOR CONCESSIONAL RA TE OF TAX U/S 115H WAS ALLOWED BY THE LD. CIT(A) IN APPEAL NO. 54/CIT(A)-X IV/2002-03. THE FACTS IN THE INSTANT CASE ARE IDENTICAL TO THE FATS FOR THE ASSESSMENT YEAR 2000-01. IT IS ALSO NOTICED THAT DURING THE CURSE O F RE-ASSESSMENT PROCEEDINGS THE APPELLANT HAD FILED DECLARATION BEF ORE THE ASSESSING OFFICER AS PER THE REQUIREMENT OF SECTION 115H. THE LD. ASSESSING OFFICER HAS NOT POINTED OUT ANY DEFECT IN THE SAID DECLARATION. DURING THE APPELLATE PROCEEDINGS THE LD. AUTHORIZED REPRESENTA TIVE OF THE APPELLANT HAS ALSO FILED A DECLARATION BY AN AFFIDA VIT. HAVING CONSIDERED ALL THE FATS I AM OF THE CONSIDERED VIEW THAT THE A PPELLANTS CASE IS COVERED IN HIS FAVOUR BY THE ORDER OF THE LD. COMMI SSIONER OF INCOME- TAX (APPEALS)-XIV FOR THE ASSESSMENT YEAR 2000-01 W HEREIN THE CIT(A) HAS ORDERED AS UNDER: I FIND THAT THE ASSESSING OFFICER'S ACTION IS WITH OUT JURISDICTION AND OUTSIDE THE PURVIEW OF SECTION 143)1. ON OTHER WORD S WHILE PROCESSING THE RETURN U/S. 143(1) THE AO WAS NOT JU STIFIED IN REJECTING THE APPELLANTS CLAIM FOR SPECIAL RATE OF TAX OF 20% UNDER SECTION 115H IN RESPECT OF THE AFORESAID INTEREST INCOME OF RS.1,84,712/- AND SUBJECTING THE SAME AT THE HIGHER RATE OF 30% RESULTING THE HIGHER TAX LIABILITY. IT IS ALSO SEEN THAT APPELLANTS CLAIM IN THIS REGARD WAS ALLOWED BY THE AO IN THE I NTIMATION U/S. 143(1(A) FOR THE PRECEDING ASSESSMENT YEAR. I, THER EFORE, DIRECT THE AO TO ASSESS THE INTEREST INCOME OF RS.1,84,712 /- AT THE SPECIAL RATE OF TAX OF 20% IN ACCORDANCE WITH THE P ROVISIONS OF SECTION 115H AND MODIFY THE ASSESSMENT ACCORDINGLY. RESPECTFULLY FOLLOWING THE ORDER OF MY PREDECESSOR AND HAVING DULY CONSIDERED THE FACTS OF THE CASE AND EVIDENCE ON RE CORD, I AM OF THE CONSIDERED VIEW THAT THE APPELLANT IS ENTITLED FOR CONCESSIONAL RATE OF TAX AT THE RATE OF 20% IN ACCORDANCE WITH THE PROVISION S OF SECTION 115H OF THE INCOME-TAX ACT, 1961. ACCORDINGLY, I DIRECT THE ASSESSING OFFICER TO ASSESS THE INTEREST INCOME OF RS.28,82,656/- AT THE SPECIAL RATE OF TAX OF 20% IN ACCORDANCE WITH THE PROVISIONS OF SECTION 11 5H AND MODIFY THE ITA NO.1067/KOL/2013 A.Y. 2004-05 ACIT CIR-21 KOL. V. SH PRITHVISH NAG PAGE 3 ASSESSMENT ACCORDINGLY. ACCORDINGLY, THE GROUND NO. 2 OF THE APPEAL STANDS DISPOSED OF. AGGRIEVED, REVENUE IS IN APPEAL BEFORE US. SHRI R.P.KUMRA, LD. AUTHORIZED REPRESENTATIVE APPEA RING ON BEHALF OF ASSESSEE AND SHRI P.K.CHAKRABORTY, LD. DEPARTMENTAL REPRESENTATIVE APPEARING ON BEHALF OF REVENUE. 4. WE HAVE HEARD RIVAL CONTENTIONS OF BOTH THE PART IES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. LD. AR RELIED ON THE ORDER OF LD. CIT(A) WHEREAS LD. DR RELIED ON THE ORDER OF ASSESSING OFF ICER. WE FIND THAT AO LEVIED THE TAX @ 30% ON THE GROUND THAT ASSESSEE FA ILED TO PRODUCE THE DECLARATION AS REQUIRED U/S 115H OF THE ACT. WE FUR THER FIND THAT FROM THE AFORESAID DISCUSSION THAT ASSESSEE WAS HAVING NRI S TATUS TILL AY 1995-96 WHEN ASSESSEE BECAME RESIDENT OF INDIA. THE ASSESSE E IS LIABLE TO TAX AT CONSIDERABLE RATE OF TAX ON THE INCOME EARNED FROM FOREIGN ASSET IN TERMS OF THE PROVISION OF SECTION 115H OF THE ACT WHICH IS R EPRODUCED BELOW:- 115H. WHERE A PERSON, WHO IS A NON-RESIDENT INDIAN IN ANY PREVIOUS YEAR, BECOMES ASSESSABLE AS RESIDENT IN INDIA IN RE SPECT OF THE TOTAL INCOME OF ANY SUBSEQUENT YEAR, HE MAY FURNISH TO TH E [ASSESSING] OFFICER A DECLARATION IN WRITING ALONG WITH HIS RET URN OF INCOME UNDER SECTION 139 FOR THE ASSESSMENT YEAR FOR WHICH HE IS SO ASSESSABLE, TO THE EFFECT THAT THE PROVISIONS OF THIS CHAPTER SHAL L CONTINUE TO APPLY TO HIM IN RELATION TO THE INVESTMENT INCOME DERIVED FR OM ANY FOREIGN EXCHANGE ASSET BEING AN ASSET OF THE NATURE REFERRE D TO IN SUB-CLAUSE (II) OR SUB-CLAUSE (III) OR SUB-CLAUSE (IV) OR SUB- CLAUSE (V) OF CLAUSE (F) OF SECTION 115C; AND IF HE DOES SO, THE PROVISIONS OF THIS CHAPTER SHALL CONTINUE TO APPLY TO HIM IN RELATION TO SUCH INCOME FOR THAT ASSESSMENT YEAR AND FOR EVERY SUBSEQUENT ASSESSMENT YEAR UNTIL THE TRANSFER OR CONVERSION (OTHERWISE THAN BY TRANSFER) INTO MONEY OF SUCH ASSETS. WE FIND FROM THE ABOVE PROVISION THAT ONCE DECLARAT ION HAS BEEN FILED BY ASSESSEE U/S 115H OF THE ACT THEN HE DOES NOT REQUI RE TO FILE THE SAME IN THE SUBSEQUENT YEAR AND ASSESSEE WILL CONTINUE TO ENJOY THE BENEFIT GIVEN UNDER THE PROVISIONS OF THE SAID SECTION. HOWEVER, IN THE INSTANT CASE, ASSESSEE DID ITA NO.1067/KOL/2013 A.Y. 2004-05 ACIT CIR-21 KOL. V. SH PRITHVISH NAG PAGE 4 NOT PRODUCE THE DECLARATION AS REQUIRED BY ASSESSIN G OFFICER FOR VERIFICATION. HENCE, THE MATTER IS RESTORED BACK TO THE FILE OF A SSESSING OFFICER WITH A DIRECTION TO ASSESSEE TO FURNISH THE REQUIRED DECLA RATION AND TO CO-OPERATE WITH THE AO IN THE ASSESSMENT PROCEEDINGS. SO IN VI EW OF ABOVE THIS GROUND OF REVENUES APPEAL IS ALLOWED FOR STATISTICAL PURP OSE. 5. IN THE RESULT, REVENUES APPEAL IS ALLOWED FOR STAT ISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT 06/ 11/2015 SD/- SD/- (MAHAVIR SINGH) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP !- 06 /1 1 /2015 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-ACIT, CIR-21, 169 A.J.C. BOSE ROAD, BAMB OO VILLA, 3 RD FL KOL-14 2. / RESPONDENT-SHRI PRITHVISH NAG, 254-E, N.S.C. BOS E ROAD, KOLKATA-47 3. * +, - - . / CONCERNED CIT KOLKATA 4. - - .- / CIT (A) KOLKATA 5. 012 33+,, - +, , / DR, ITAT, KOLKATA 6. 267 89 / GUARD FILE. BY ORDER/ - , /TRUE COPY/ / - +, ,