S.Arul Murugan, CHENNAI V. ITO, CHENNAI

ITA 1100/CHNY/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 4121 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-07-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 03-05-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R RAJESWARI
• Assessee Lawyers: S SRIDHAR
• Keywords: Salary income; Principle of natural justice; Earning of tax free income

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: CHENNAI , ! . , ' BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER , AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NO.1100/MDS/2017 /ASSESSMENT YEAR: 2009-10 SHRI S.ARUL MURUGAN, PLOT NO.57/D, NO.9/8, VIJAYAGANAPATHY NAGAR, ULLAGARAM, CHENNAI-600 091. VS. THE INCOME TAX OFFICER, INTERNATIONAL TAXATION-I(1), CHENNAI-600 034. [PAN: AJSPA 8578 J ] ( & /APPELLANT) ( '(& /RESPONDENT) & ) / APPELLANT BY : SHRI S.SRIDHAR, ADV. '( & ) /RESPONDENT BY : SMT. R. RAJESWARI, JCIT ) /DATE OF HEARING : 11.07.2017 ) /DATE OF PRONOUNCEMENT : 11.07.2017 / O R D E R PER GEORGE MATHAN , JUDICIAL MEMBER : ITA NO.1100/MDS/2017 IS AN APPEAL FILED BY THE ASS ESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-1 6, CHENNAI, IN ITA NO.56/CIT(A)-16/2009-10 DATED 22.03.2017 FOR THE AY 2009-10. ITA NO.1100/MDS/2017 :- 2 -: 2. SMT. R. RAJESWARI, JCIT, REPRESENTED ON BEHALF O F THE REVENUE AND SHRI S.SRIDHAR, ADV., REPRESENTED ON BEHALF OF THE ASSESSEE. 3. IT WAS SUBMITTED BY THE LD.AR THAT THE ASSESSEE IS AN INDIVIDUAL WHO IS HAVING A NON-RESIDENCE STATUS FOR THE AY 2009-10 . THE ASSESSEE HAD RECEIVED SALARY OF RS.27,90,400/- FROM M/S.GATI ASI A PACIFIC PTE LTD. THE ASSESSEE HAD FILED HIS ORIGINAL RETURN OF INCOME FO R THE AY 2009-10 ON 08.10.2009, WHEREIN, THE ASSESSEE HAD IN SCHEDULE-E I UNDER THE HEAD EXEMPT INCOME SPECIFIED THE AMOUNT OF RS.27,90,400/ - AS EXEMPT. THE ASSESSEE HAD CONSEQUENTLY CLAIMED THE REFUND OF RS. 2,54,120/- PAID AS SELF-ASSESSMENT TAX. THE RETURN FILED BY THE ASSES SEE CAME TO BE PROCESSED BY THE CENTRAL PROCESSING CENTRE, BANGALO RE AND AN INTIMATION U/S.143(1) CAME TO BE ISSUED ON THE ASSESSEE WHEREI N THE STATUS HAS BEEN RECORDED AS NON-RESIDENT BUT TAX HAS BEEN COMP UTED ON HIS SALARY WHICH HE HAS CLAIMED AS EXEMPT. AGGRIEVED WITH THE INTIMATION U/S.143(1), THE ASSESSEE HAS FILED RECTIFICATION AP PLICATION U/S.154 ON 31.07.2010 INTIMATING THAT HE HAS FILED THE RETURN OF INCOME ADMITTING NIL INCOME BY CLAIMING EXEMPTION ON THE INCOME OF RS.27 ,90,400/- SINCE THE SAME WAS EARNED OUTSIDE INDIA AND ALSO ON THE GROUN D THAT THE HE WAS OUTSIDE INDIA FOR 288 DAYS FOR THE RELEVANT AY. IT WAS A SUBMISSION THAT THE RECTIFICATION APPLICATION FILED BY THE ASSESSEE CAME TO BE DISPOSED OFF VIDE ORDER DATED 26.05.2016 BY THE AO WHEREIN IT WA S MENTIONED THAT THERE IS NO MISTAKE APPARENT FROM THE RECORD. CONS EQUENTLY, THE RECTIFICATION PETITION WAS REJECTED. IT WAS A SUBM ISSION THAT ON APPEAL, THE ITA NO.1100/MDS/2017 :- 3 -: LD.CIT(A) UPHELD THE STAND OF THE AO. IT WAS A SUB MISSION THAT THE ASSESSEE BEING A NON-RESIDENT AND HAVING FILED RETU RN OF INCOME DISCLOSING NIL INCOME AND CLAIMING THE SALARY RECEIVED BY HI M FROM HIS EMPLOYMENT OUTSIDE INDIA AS EXEMPT, THE MISTAKE COMMITTED BY T HE CPC AT BANGALORE IN RESPECT OF RETURN OF INCOME FILED BY HIM, WAS A MISTAKE WHICH WAS RECTIFIABLE U/S.154. IT WAS A SUBMISSION THAT THE ORDERS OF THE AO & THE LD.CIT(A) MAY BE REVERSED AND THE AO DIRECTED TO RE CTIFY THE MISTAKE IN RESPECT OF THE INTIMATION U/S.143(1). 4. IN REPLY, THE LD.DR VEHEMENTLY SUPPORTED THE ORD ERS OF THE AO & THE LD.CIT(A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PER USAL OF THE RETURN FILED BY THE ASSESSEE CLEARLY SHOWS THAT THE ASSESS EE HAS SHOWN HIS STATUS AS NON-RESIDENT. A PERUSAL OF THE INTIMATION U/S.1 43(1) ALSO SHOWS THAT THE STATUS OF THE ASSESSEE HAS BEEN TAKEN AS NON-RE SIDENT. HOWEVER, WHEN ENTERING THE DETAILS OF THE SALARY, WHICH HAS BEEN CLAIMED AS EXEMPT BY THE ASSESSEE IN HIS RETURN, THE SAME HAS NOT BEE N DONE CORRECTLY BY THE CPC. A PERUSAL OF THE INTIMATION ISSUED ALSO SHOWS THAT EVEN THE SELF- ASSESSMENT TAX PAID BY THE ASSESSEE HAS NOT BEEN CO NSIDERED IN THE INTIMATION. THUS, IT CLEARLY SHOWS THAT THERE ARE MISTAKES APPARENT FROM THE RECORD WHICH REQUIRES TO BE RECTIFIED IN THE IN TIMATION ISSUED U/S.143(1). IN THESE CIRCUMSTANCES, IN THE INTERES T OF NATURAL JUSTICE, THE ISSUES IN THIS APPEAL RESTORED TO THE FILE OF THE A O FOR VERIFICATION AS TO ITA NO.1100/MDS/2017 :- 4 -: WHETHER THE ASSESSEE IS A NON-RESIDENT AND AS TO WH ETHER THE SALARY RECEIVED BY HIM IS IN FACT FROM THE EMPLOYER OUTSID E INDIA IN RESPECT OF THE EMPLOYMENT OUTSIDE INDIA. IF IT IS SO, THEN TH E ASSESSEES SALARY INCOME RECEIVED BY HIM IS NOT LIABLE TO TAX IN INDI A. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON JULY 11, 201 7, AT CHENNAI. SD/- SD/- ( . ) ( A. MOHAN ALANKAMONY ) ! /ACCOUNTANT MEMBER ( ) (GEORGE MATHAN) ! /JUDICIAL MEMBER /CHENNAI, 1 /DATED: JULY 11, 2017. TLN ) '23 43 /COPY TO: 1. & /APPELLANT 4. 5 /CIT 2. '(& /RESPONDENT 5. 3 ' /DR 3. 5 ( ) /CIT(A) 6. /GF